Court of Appeals of Arizona, First Division, Department A
(Not for Publication – Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Mohave County Cause No. S8015CR20080797, The Honorable Rick A. Williams, Judge.
Thomas C. Horne, Attorney General Phoenix By Joseph T. Maziarz, Chief Counsel Criminal Appeals Section Attorneys for Appellee.
Jill L. Evans, Mohave County Appellate Defender Kingman Attorney for Appellant.
JON W. THOMPSON, Presiding Judge
¶1 Joseph Douglas Whaley appeals his conviction and sentence for child molestation, a class two felony, on grounds of double jeopardy, prosecutorial vindictiveness, and evidentiary errors.
¶2 A grand jury indicted Whaley in 2008 for one count of sexual conduct with a minor for "intentionally or knowingly engag[ing] in sexual intercourse with A.M., a child under the age of twelve, " and two counts of kidnapping. A jury convicted Whaley of child molestation as a lesser-included offense of the sexual conduct charge, and acquitted him of the kidnapping charges. On appeal, this court reversed the conviction for child molestation and remanded for a new trial, finding that the trial court had abused its discretion in refusing to instruct on attempted sexual conduct with a minor as an alternative lesser-included offense of the charged crime. State v. Whaley, 1 CA-CR 09-0558 .
¶3 On remand, the State re-tried Whaley for child molestation. A.M., who was nine years old at the time of the charged conduct, testified that Whaley pulled her panties down, spit on his hand and wiped it on her "butt, " held her down on the master bedroom bed, and pressed his penis "into my butt." The victim's mother testified that she walked in on them, saw Whaley bent over her daughter, and pulled Whaley's erect penis from her daughter's "butt."
¶4 Whaley did not deny the conduct in a series of calls to his wife from the jail the following day, but repeatedly responded, "I don't know, " to questions as to why he did it. At one point, he admitted, "I know what I did was wrong. I don't know why I did it but I know I did it." He testified at trial, however, that he did not engage in any of the charged conduct.
¶5 The jury convicted Whaley of molestation, and the judge sentenced him to seventeen years in prison. Whaley filed a timely notice of appeal. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-4033(A) (1) (2010) .
¶6 Whaley argues that "the court erred in allowing newly charged conduct to support the verdict in violation of the double jeopardy bar against a successive prosecution of a new charge arising from the same conduct as the earlier prosecution." The procedural history of this issue is as follows. Because this court vacated the child molestation conviction on the ground the trial court erred in instructing the jury, we did not reach Whaley's "argument that the court created a risk of a non-unanimous verdict by refusing to instruct the jury on multiple acts." State v. Whaley, 1 CA-CR 09-0558, ¶ 22. On remand, to avoid the multiple acts/non-unanimous verdict problem raised during the first trial, and on appeal, the State re-indicted Whaley on two counts of child molestation: one for "directly or indirectly touching his genitals to the person of A.M." (Count One), and one for "directly or indirectly touching, fondling, or manipulating the genitals or anus of A.M. with his hand" (Count Two).
¶7 The trial court dismissed Count Two, reasoning that it would be improper for Whaley to face two counts on re-trial when he had originally been convicted of only one count, and, on motion by the prosecutor, dismissed the new indictment in its entirety. Trial accordingly proceeded on the child molestation charge for which Whaley had previously been convicted. The judge did not preclude the prosecutor from relying on evidence that Whaley had touched the victim's genitals with his hand or her body with his penis, but instructed the jury that in order to find Whaley guilty, it must unanimously agree on the conduct that formed the basis of the conviction.
¶8 We review claims of double jeopardy de novo. State v. Moody, 208 Ariz. 424, 437, ¶ 18, 94 P.3d 1119, 1132 (2004). The double jeopardy clauses of the federal and state constitutions prohibit: 1) a second prosecution for the same offense after acquittal; 2) a second prosecution for the same offense after conviction; and 3) multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. ...