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State v. Johnson

Court of Appeals of Arizona, First Division, Department D

July 30, 2013

STATE OF ARIZONA, Appellee,
v.
KENNETH SCOTT JOHNSON, Appellant.

Not for Publication -Rule 111, Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County Cause No. CR2011-007271-001 The Honorable Dawn M. Bergin, Judge

Thomas C. Horne, Arizona Attorney General Phoenix By Joseph T. Maziarz, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee.

DeBrigida Law Offices, PLC Glendale By Ronald M. DeBrigida, Jr. Attorneys for Appellant.

Kenneth Scott Johnson Florence Appellant.

MEMORANDUM DECISION

MARGARET H. DOWNIE, Judge.

¶1 Kenneth Scott Johnson timely appeals his conviction for child molestation in violation of Arizona Revised Statutes ("A.R.S.") section 13-1410. Pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), defense counsel has searched the record, found no arguable question of law, and asked that we review the record for fundamental error. See State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Defendant filed a supplemental brief in propria persona. On appeal, we view the evidence in the light most favorable to sustaining the conviction. State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981), cert. denied, 459 U.S. 882 (1982).

FACTS AND PROCEDURAL HISTORY

¶2 In November 1995, a 12-year-old girl ("the victim") spent the night with a friend. Johnson was staying in the home while the friend's mother was out of town. During the night, the victim awakened to someone touching the top of her vaginal area over her sleepwear with his hand and fingers. She saw the silhouette of a man standing over her, smoking a cigarette, and she recognized the man as Johnson. He ran from the room when the victim rolled over.

¶3 The victim went to the living room to call her father. She told Johnson she had a headache, and he offered to massage her head. Johnson sat on the couch with the victim "between his legs" and massaged her head. The victim then called her father, and her parents called the police.

¶4 Johnson was charged with one count of child molestation regarding the victim.[1] The State moved to admit evidence of two separate uncharged events ("Apache Junction allegations" and "Seattle allegations") to prove motive, intent, identity or absence of mistake, and to demonstrate that Johnson had a character trait giving rise to an aberrant sexual propensity to commit the charged offense. See Ariz. R. Evid. 404(b), (c). After an evidentiary hearing, the court granted the motion, subject to certain limitations set forth in its minute entry ruling.

¶5 A jury trial ensued. The court denied Johnson's motions for judgment of acquittal pursuant to Rule 20, Arizona Rules of Criminal Procedure ("Rule"), made at the close of the State's case-in-chief and after the State's rebuttal evidence. The jury found Johnson guilty. He was sentenced to a slightly mitigated flat term of 15 years in prison and given 331 days' pre-sentence incarceration credit.

DISCUSSION

¶6 We have read and considered the briefs submitted and have reviewed the entire record. Leon, 104 Ariz. at 300, 451 P.2d at 881. We find no fundamental error. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure, and the sentence imposed was within the statutory range. Johnson was present at all critical phases of the proceedings and was represented by counsel. The jury was properly impaneled and instructed. The jury ...


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