Opinion
2 CA-CR 2024-0004
07-09-2024
The State of Arizona, Appellee, v. Pushkar Naik, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Joshua C. Smith, Assistant Attorney General, and Carly Norton, student certified pursuant to Rule 39(c), Ariz. R. Sup. Ct., Phoenix Counsel for Appellee Michael J. Dew, Phoenix Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Yavapai County No. CR202100246 The Honorable Debra R. Phelan, Judge
Kristin K. Mayes, Arizona Attorney General
Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals
By Joshua C. Smith, Assistant Attorney General, and Carly Norton, student
certified pursuant to Rule 39(c), Ariz. R. Sup. Ct., Phoenix
Counsel for Appellee
Michael J. Dew, Phoenix
Counsel for Appellant
Presiding Judge Sklar authored the decision of the Court, in which Vice Chief Judge Eppich and Judge Brearcliffe concurred.
MEMORANDUM DECISION
SKLAR, Presiding Judge:
¶1 After a jury trial, appellant Pushkar Naik was convicted of sexual abuse, a domestic-violence offense. The trial court suspended the imposition of sentence and placed Naik on three years' probation.
¶2 On appeal, counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530 (App. 1999), asserting he "searched the record" and was "unable to find any arguable question of law that is not frivolous." Consistent with Clark, 196 Ariz. 530, ¶ 30, counsel provided a factual and procedural history of the case with citations to the record and asked this court to search the record for reversible error. Naik filed a pro se supplemental brief, arguing that the trial court erred in denying a continuance based on trial counsel's health condition and challenging various evidentiary rulings. Upon our initial review, we identified a non-frivolous issue and ordered further briefing on whether Naik's conviction for sexual abuse under A.R.S. § 13-1404(A) could be classified as a domestic-violence offense under A.R.S. § 13-3601(A).
¶3 Viewed in the light most favorable to affirming the verdict, see State v. Holle, 240 Ariz. 300, ¶ 2 (2016), the evidence is sufficient here, see A.R.S. §§ 13-1401(A)(3)(a), (7)(b), 13-1404(A). In January 2021, Naik touched his roommate's breasts and inserted his hand in her vagina while she was intoxicated and unable to stop him. The term of probation imposed is within the statutory range. See A.R.S. §§ 13-902(A)(4), 13-1404(C). We have reviewed the arguments Naik identified in his pro se supplemental brief and have concluded none are arguable issues requiring further briefing. See State v. Thompson, 229 Ariz. 43, ¶ 3 (App. 2012).
¶4 However, even though it seems counterintuitive that a conviction for sexual abuse cannot be classified as a domestic-violence offense, the parties, and we, agree that it is so. Section 13-3601(A) lists the various offenses that can be designated as domestic-violence offenses, provided that the defendant and the victim also share a specifically enumerated relationship. Naik was convicted of sexual abuse under § 13-1404(A), which is not listed in § 13-3601(A). It therefore does not matter that Naik and his roommate had one of the specifically enumerated relationships listed. See § 13-3601(A)(1) (victim and defendant "resided in the same household."). Because the domestic-violence designation is wholly a creature of statute, the express language of the statute, and not the nature of the crime, controls whether it is applied. See State v. Superior Court, 183 Ariz. 462, 464 (App. 1995) ("[C]reature of statute . . . must be strictly construed."); cf. State v. Allred, 102 Ariz. 102, 103 (1967) (garnishment is creature of statute governed by statutory language). Moreover, this error is prejudicial. State v. Escalante, 245 Ariz. 135, ¶ 29 (2018) ("Establishing prejudice from fundamental error varies depending on the nature of the error and the unique case facts."). The domestic-violence classification carries with it additional fines and penalties, see, e.g., A.R.S. §§ 12-116.05(A), 12-116.06, 13-3601(L), (M), as well as a certain stigma, see Cardoso v. Soldo, 230 Ariz. 614, ¶ 12 (App. 2012).
As the state points out, sexual abuse can be a domestic-violence offense if the victim is under fifteen years of age. See A.R.S. §§ 13-705(T)(1)(j), 13-3601(A). It is undisputed, however, that Naik's roommate was over eighteen years old.
¶5 Here, the trial court imposed two additional fines "based on the domestic violence offense component of the conviction," as the court described it, one under § 12-116.05(A) and one under § 12-116.06. Section 12-116.06 provides that "a person who is convicted of a violation of [A.R.S. §§] 13-2921, 13-2921.01 or 13-2923 or an offense listed in title 13, chapter 36 shall pay an additional assessment of fifty dollars." Because sexual abuse under § 13-1404(A) is not one of the enumerated statutes and is not listed in title 13, chapter 36, see § 13-3601(A)(1), the court erred in imposing a fine under § 12-116.06. See State v. McDonagh, 232 Ariz. 247, ¶ 7 (App. 2013) ("Imposition of an unauthorized fine renders a criminal sentence illegal, and an illegal sentence constitutes fundamental error . . . and is prejudicial."). By contrast, § 12-116.05(A) provides that "a person who is convicted of an offense included in title 13, chapter 14 or 35.1, stalking pursuant to § 13-2923 or a domestic violence offense pursuant to § 13-3601 shall pay an assessment of fifty dollars." Sexual abuse is included in title 13, chapter 14. See § 13-1404(A). The $50 fine under § 12-116.05(A) is therefore proper, notwithstanding the erroneous domestic-violence classification.
¶6 In his supplemental brief on the domestic-violence classification, Naik also maintains that there is a discrepancy between the oral pronouncement of sentence and the written terms of probation. Specifically, he asserts that there is a conflict over whether he must participate in Project Safe. We disagree. The sentencing transcript and minute entry, as well as the written terms of probation, all reflect that Project Safe applies to this case. No discrepancy exists, and therefore no correction or modification is needed.
¶7 Because the classification of Naik's sexual abuse conviction as a domestic-violence offense constitutes fundamental, prejudicial error, we vacate that classification, as well as the $50 fine under § 12-116.06, and remand the matter for the trial court to correct its sentencing minute entry and related orders. We otherwise affirm Naik's conviction and term of probation.