Court of Appeals of Arizona, First Division, Department D
Not for Publication – Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Yuma County Cause No. S1400CR201100807 The Honorable Lawrence C. Kenworthy, Judge
Thomas C. Horne, Attorney General Phoenix by Joseph T. Maziarz, Section Chief Counsel Criminal Appeals and Andrew Reilly, Assistant Attorney General Attorneys for Appellee.
Yuma County Public Defender’s Office Yuma by Edward F. McGee, Deputy Public Defender Attorneys for Appellant.
RANDALL M. HOWE, Judge.
¶1 Damien Charles Boddy appeals his conviction and sentence for sexual assault, arguing the court erred in upholding the State's peremptory strikes against his Batsonchallenge and in considering his refusal to accept responsibility for his crime as an aggravating circumstance. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 On June 21, 2011, a Yuma County Grand Jury indicted Boddy on kidnapping and sexual assault, class two felonies; and aggravated assault, a class six felony. During jury selection, Boddy's counsel argued that the State had violated Batson by using its peremptory challenges to strike an African-American and three Hispanics from the venire based on their race. Although the trial court questioned whether counsel had made a prima facie case of discrimination when four Hispanics remained on the jury, the prosecutor voluntarily explained the reasons for the strikes: one juror was a teacher; the second had sat as a grand juror, loved criminal science dramas, and had served as a Marine; the third was a friend of a victim/witness advocate and a teacher; the fourth wore a t-shirt to court, sat "hunched over in his chair and slouched down, " had not listened to the voir dire questions, and was a student. The trial court ruled that counsel had not shown by a preponderance of the evidence that the strikes were racially based. Boddy's counsel attempted to list the jurors who remained on the jury and had the same characteristics as the struck jurors, but the trial court stopped counsel from doing so stating, "there's already a record about that." The trial then proceeded, and the jury found Boddy guilty of sexual assault but not guilty of aggravated assault.
¶3 Before sentencing, the Yuma County Adult Probation Department prepared a presentence report and recommended that the trial court impose the presumptive term of seven years imprisonment. The Probation Department considered several factors in its recommendation: (1) the offense caused the victim bodily injury; (2) the offense had a "long-lasting emotional impact" on the victim; (3) Boddy had no prior felony convictions; (4) the victim had taken anti-convulsion medication before the offense and was "in an altered state of mind" at the time of the offense; (5) Boddy's offense made him ineligible to receive a suspended sentence; and (6) Boddy "still strongly suggests the sexual contact with the victim was mutual and he does not take responsibility for the offense."
¶4 At sentencing, the State agreed with the recommendation, but Boddy requested a mitigated sentence. Boddy objected to any consideration of the factors that the victim suffered bodily and emotional injury and was in an altered state of mind at the time of the offense, contending that no evidence supported them. He also objected to consideration of his refusal to take responsibility for the offense, arguing that he was merely exercising his constitutional right to maintain that he was not guilty. The court ruled, however, that it could consider Boddy's refusal to take responsibility for the offense in determining the sentence.
¶5 The trial court then heard Boddy's allocution, and he requested a mitigated sentence because the case took "a toll" on his family and because he had merely engaged in consensual sex. The trial court found that a mitigated sentence was inappropriate because the sex was not consensual and Boddy had injured the victim and caused her "significant emotional harm." The court then sentenced Boddy to seven years imprisonment, with credit for 402 days of presentence incarceration.
¶6 Boddy timely appeals. We have jurisdiction under Article 6, Section 9 of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, and 13-4033(A) (West 2013).
I. Batson Challenge