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State v. Garcia-Ortiz

Court of Appeals of Arizona, First Division, Division One

November 19, 2013

STATE OF ARIZONA, Appellee,
v.
DELFINO GARCIA-ORTIZ, Appellant.

Not for Publication See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24

Appeal from the Superior Court in Maricopa County No. CR2006-009451-001 The Honorable Roger E. Brodman, Judge

Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix By Terry J. Reid Counsel for Appellant

Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Patricia K. Norris and Judge Andrew W. Gould joined.

MEMORANDUM DECISION

THUMMA, Judge:

¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for Garcia-Ortiz has advised the court that, after searching the entire record, counsel has found no arguable question of law and asks this court to conduct an Anders review of the record. Garcia-Ortiz was given the opportunity to file a supplemental brief pro se, but made no such filing. Finding no reversible error, Garcia-Ortiz's convictions and resulting sentences are affirmed.

FACTS[1] AND PROCEDURAL HISTORY

¶2 As is relevant here, in September 2006, a grand jury indicted Garcia-Ortiz of one count of sexual abuse, a class three felony, and two counts of sexual conduct with a minor, class two felonies, committed against L.C.. The charged offenses occurred between January 10, 2004 and November 9, 2005, when L.C. would have been 11 or 12 years old.[2] In September 2006, a warrant issued for Garcia-Ortiz's arrest and he was arrested in 2011.

¶3 Pretrial, the State moved to admit character trait evidence under Ariz. R. Evid. 404(c) consisting of other improper acts by Garcia-Ortiz against a second minor R.L. After full briefing, an evidentiary hearing and oral argument, the superior court allowed evidence of Garcia-Ortiz's other improper acts taken against R.L. in a minute entry containing specific findings required by Ariz. R. Evid. 404(c).

¶4 The evidence at trial showed that the families of L.C. and Garcia-Ortiz were friends, and L.C. spent time at Garcia-Ortiz's home because she was good friends with his daughter. L.C. testified that, when she was 11 or 12 years old, Garcia-Ortiz fondled her breast inside her blouse, anally raped her and forced her to masturbate him. After L.C. disclosed these incidents to a teacher in November 2005, an investigation followed.

¶5 R.L. testified that her family and Garcia-Ortiz's family were friends and would often spend time together. R.L. testified that, on one occasion when she was approximately 11 or 12 years old, Garcia-Ortiz "sat me on his lap and started kissing my ear. . . . I could feel his saliva. It wasn't a simple kiss. It was like a man to a woman." R.L. described another occasion in which Garcia-Ortiz "grabbed [her] legs" and touched her "private parts" over her clothes. At some point, R.L. disclosed these incidents to her family and the police, although the date of disclosure is unclear from the record. Though both L.C. and R.L. were friends with Garcia-Ortiz's daughter, they did not know each other.

¶6 After a seven day trial, and after being instructed on the law and hearing closing arguments, the jury found Garcia-Ortiz guilty as charged. In special verdict forms for counts two and three, the jury found L.C. was "12 years of age or under" at the time of the offenses. In a special verdict form for count two, the jury found the sexual contact was not masturbatory in nature. Defendant did not object to the jury's findings on the verdict forms or at sentencing. The superior court sentenced Garcia-Ortiz to lifetime probation for count one; life imprisonment with the possibility of release after 35 years for count two and a presumptive, consecutive term of twenty years' imprisonment for count three.

¶7 Garcia-Ortiz timely appealed his convictions and resulting sentences. This court has jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections ...


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