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State v. Ochoa

Court of Appeals of Arizona, First Division, Department C

August 13, 2013

STATE OF ARIZONA, Appellee,
v.
JERRY ALFONSO OCHOA, Appellant.

Not for Publication -Rule 111, Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County Cause No. CR2010-006260-001 The Honorable Maria del Mar Verdin, Judge

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

The Hopkins Law Office, Cedric M. Hopkins Attorney for Appellant

Jerry Alfonso Ochoa, Appellant

MEMORANDUM DECISION

MICHAEL J. BROWN, Judge

¶1 Jerry Alfonso Ochoa appeals his convictions and sentences for sexual conduct with a minor and sexual exploitation of a minor. Counsel for Ochoa filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising that after searching the record on appeal, he was unable to find any arguable grounds for reversal. Ochoa was granted the opportunity to file a supplemental brief in propria persona, and he has done so, as well as an amended supplemental brief.[1]

¶2 Our obligation is to review the entire record for reversible error. State v. Clark, 196 Ariz. 530, 537, 30, 2 P.3d 89, 96 (App. 1999). We view the facts in the light most favorable to sustaining the conviction and resolve all reasonable inferences against Ochoa. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). We find no reversible error.

BACKGROUND

¶3 In July 2010, the State charged Ochoa with Counts 1-3, sexual conduct with a minor, class 2 felonies and dangerous crimes against children, in violation of Arizona Revised Statutes ("A.R.S.") section 13-1405, Counts 4-8, sexual conduct with a minor, class 6 felonies, in violation of A.R.S. § 13-1405, Counts 9-14, child prostitution, class 2 felonies, in violation of A.R.S. § 13-3212, [2] and Counts 15-19, sexual exploitation of a minor, class 2 felonies in violation of A.R.S. § 13-3553. The following evidence was presented at trial.

¶4 The victim testified that she met Ochoa in 2006 when she was fourteen years old. The victim testified that shortly after meeting Ochoa, while she was still fourteen, the two of them engaged in sexual activity on three separate occasions, including one instance of digital vaginal penetration and two instances of sexual intercourse. The victim and Ochoa stopped their sexual activities for a time, but before the victim's sixteenth birthday, the two again had intercourse. The victim also testified that she and Ochoa had intercourse numerous times while she was seventeen. The victim testified that in the course of their relationship, Ochoa took several photographs of her with his cell phone. The photographs depicted the victim without clothing, including at least two photographs of her vaginal area. When the photographs were offered as evidence at trial, the victim confirmed Ochoa took the photos and identified herself in them. The victim also testified that she was present when Ochoa viewed the photographs on his phone and "he would just say stuff that a boyfriend would say."

¶5 Detective Bill testified that she came into contact with the victim in February 2010 when she assisted the victim in obtaining an order of protection and serving it on Ochoa. In an interview with Detective Bill, the victim gave a thorough account of her relationship with Ochoa, including dates and places they engaged in sexual intercourse. Detective Bill then interviewed Ochoa and based on that interview obtained a search warrant for his home and cell phone. Evidence collected from the home included mixed DNA that matched Ochoa and the victim, and a forensic analysis of the cell phone revealed the sexually explicit photographs of the victim.

¶6 Ochoa, who was thirty-one years old at the time of trial, testified that he did not meet the victim until April of 2009 and only knew the victim as someone that occasionally visited his mother. Ochoa further testified that when he first met the victim, she told him that she was eighteen years old. When initially confronted by police about a possible relationship with the victim, Ochoa denied having any relationship with her. After the police confronted Ochoa with the information they had received from the victim, however, Ochoa admitted to having a relationship with the victim but insisted that he only had sexual intercourse with her when she was eighteen. Ochoa also denied ever having taken any photographs of the victim with his phone.

¶7 Following nineteen days of trial, a jury convicted Ochoa of Counts 1, 2, 3, 4, 7, 8, 15 and 16. The jury acquitted Ochoa on Counts 9 through 12 and 14 and could not reach an agreement on Counts 5, 6, and 13. The trial court sentenced Ochoa to the presumptive term of twenty years' imprisonment on Counts 1, 2, and 3, to run consecutively.[3] The court sentenced Ochoa to presumptive terms of imprisonment of 1.75 years on Counts 4, 7, and 8 to run concurrently with one another but consecutive to the sentence for Count 3. Finally, the court sentenced Ochoa to presumptive terms of 9.25 years' imprisonment on counts 15 and 16, to be concurrent with each other but consecutive to Counts 4, 7, and 8. The overall result of the court's sentencing was a total of seventy-one years' ...


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