Opinion
No. 2 CA-CR 2016-0402
02-06-2018
THE STATE OF ARIZONA, Appellee, v. MARSHALL NEAL RAY, Appellant.
COUNSEL Law Offices of Cornelia Wallis Honchar, P.C., Tucson By Cornelia Wallis Honchar Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20134796001
The Honorable Kenneth Lee, Judge
AFFIRMED
COUNSEL Law Offices of Cornelia Wallis Honchar, P.C., Tucson
By Cornelia Wallis Honchar
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Brearcliffe concurred. STARING, Presiding Judge:
¶1 After a jury trial, Marshall Ray was convicted of three counts of continuous sexual abuse of a child and two counts of molestation of a child, all dangerous crimes against children. The trial court sentenced him to enhanced, consecutive and concurrent sentences for a total of seventy-seven years' imprisonment. Counsel has filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530 (App. 1999), asserting she has reviewed the record and found "[n]o arguable question of law" and asking this court to search the record for fundamental error. Ray has filed a supplemental brief. We affirm.
¶2 Viewed in the light most favorable to sustaining the jury's verdicts, see State v. Tamplin, 195 Ariz. 246, ¶ 2 (App. 1999), the evidence established the following in regard to the four victims, T.K., S.K., H.K., and M.L. See A.R.S. §§ 13-1405, 13-1410, 13-1417. Ray, who was related to T.K., often visited her home when she was growing up; "he would put his hands down [her] pants or . . . on [her] butt" and touch her genitals "skin-to-skin." This happened at least ten to fifteen times from when T.K. was approximately seven or eight years old until she was eleven or twelve. T.K.'s sister, S.K., similarly testified that on at least three occasions Ray touched her genitals under her clothing; another time he touched her genitals outside her clothing; and on another occasion, he "licked [her] butt." These incidents began when S.K. was in fourth grade and stopped when she was in sixth grade.
Unless otherwise noted, we cite the current versions of statutes in this decision, as their material provisions have not changed since Ray's offenses.
Although S.K. told their father about the incidents when T.K. was approximately twelve or thirteen years old (in 2006 or 2007), T.K. did not disclose Ray's conduct to anyone until she was approximately fifteen years old (in 2009). A police report was not filed until T.K. sought counseling, when she was "approaching . . . 18"; T.K. gave the police a statement in September 2013.
¶3 Ray had contact with H.K., his ex-wife's daughter, from the time she was approximately eight until she was thirteen years old (2005-2010); he "put his hand in [her] pants," sometimes touching both the inside and the outside of her vagina with his fingers or his mouth, touched her breasts with his hand or mouth both over and under her clothing, placed his penis between her buttocks, and made her "touch his penis" with her hand. H.K. described these incidents as occurring "a lot" and "multiple times." Ray, the former boyfriend of M.L.'s mother, touched M.L.'s genitals in November 2003, when she was nine years old, and in July 2004. In addition to finding the evidence sufficient to support Ray's convictions, we conclude his sentences are within the statutory range and were lawfully imposed. See A.R.S. § 13-705(C), (D), (H), (M), (O), (P)(1)(d), (n).
¶4 In his supplemental brief, Ray raises several arguments, none of which we find persuasive. He first contends that although § 13-1417 (continuous sexual abuse of a child), requires that the factfinder "unanimously agree that the requisite number of acts occurred," the statute is unconstitutional because the factfinder need not "agree on which acts constitute the requisite number." However, in State v. Ramsey, we found "that § 13-1417 does not violate the Arizona constitutional requirement of jury unanimity." 211 Ariz. 529, ¶¶ 26-28 (App. 2005).
Ray raised this argument below. However, to the extent he now suggests we vacate his convictions in light of May v. Ryan, 245 F. Supp. 3d 1145 (D. Ariz. 2017), a case he cites for the unconstitutionality of A.R.S. §§ 13-1407 and 13-1410, while nonetheless asserting he is not relying on that case, we do not address it. See State v. Holle, 240 Ariz. 300, ¶¶ 17-19, 36, 41-44, 50 (2016) (supreme court determined statutory scheme of A.R.S. §§ 13-1407(E) and 13-1410 did not violate due process); State v. Smyers, 207 Ariz. 314, n.4 (2004) ("The courts of this state are bound by the decision of [our supreme] court and do not have the authority to modify or disregard [its] rulings."); Arpaio v. Figueroa, 229 Ariz. 444, ¶ 11 (App. 2012) (decisions of federal district courts concerning state law are not binding on this court).
¶5 In a somewhat related argument, Ray maintains that by omitting the statutory language excepting the "female breast" from its jury instruction for molestation of a child, the trial court lowered the state's burden of proof and created the possibility of a non-unanimous verdict. See § 13-1410 (person commits molestation of child under fifteen by "intentionally or knowingly engaging in or causing a person to engage in sexual contact, except sexual contact with the female breast"). Because Ray did not object to the challenged instruction, we will reverse only if it constituted fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20 (2005). However, Ray has not established the requisite prejudice under a fundamental error analysis. See State v. Edmisten, 220 Ariz. 517, ¶ 18 (App. 2009) (even if court concludes fundamental error resulted from erroneous instructions, defendant must demonstrate reasonable probability jury would have reached different result but for erroneous instruction).
The relevant portion of the instruction for molestation of a child provided the defendant "intentionally or knowingly engaged in or caused a person to engage in any direct or indirect touching, [fondling] or manipulation of any part of the genitals or anus by any part of the body or by any object or causing a person to engage in such contact with a child."
¶6 Ray also argues his sentences were illegal because A.R.S. § 13-604.01 was recognized as unconstitutional in 2008, well before he was sentenced in 2016; he should have received concurrent, five-year sentences as a first-time offender; and, he should not have received enhanced sentences under § 13-705 because that statute "was enacted on January 1, 2009." Although the trial court referred to § 13-705 at sentencing, the sentencing provisions for dangerous crimes against children when Ray committed many of his offenses were found in § 13-604.01. That statute was amended and renumbered as § 13-705 effective January 1, 2009, see 2008 Ariz. Sess. Laws, ch. 301, §§ 17, 29, but the provisions relevant to Ray's sentences remain unchanged. Additionally, Ray has cited no authority for his assertion that § 13-604.01 was unconstitutional as applied to him, and we are aware of none.
Although Ray cites to A.R.S. § 13-604, his argument indicates he is referring to § 13-604.01. --------
¶7 Finally, Ray argues the prosecution against him is barred by the statute of limitations pursuant to A.R.S. § 13-107, which he claims expired in 2011. The statute of limitations is an affirmative defense. See State v. Banda, 232 Ariz. 582, ¶ 8 (App. 2013). Accordingly, because Ray did not raise this defense below, he has waived it. See State v. King, 158 Ariz. 419, 425 n.6 (1988) (affirmative defense may be waived), citing United States v. Wild, 551 F.2d 418 (D.C. Cir. 1977) (concluding statute of limitations defense may be waived); see also State v. Jackson, 208 Ariz. 56, ¶ 22 (App. 2004) (collecting cases showing "a plethora of courts" that have concluded statute-of-limitations defense may be waived); State v. Marks, 186 Ariz. 139, 141 (App. 1996) ("Personal jurisdiction may be waived; subject matter jurisdiction may not.").
¶8 Pursuant to our obligation under Anders, we have searched the record for fundamental, reversible error and have found none. Accordingly, we affirm Ray's convictions and sentences.