Not for Publication – Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CR2011-160623-001 The Honorable Pamela D. Svoboda, Judge
The Gillespie Law Firm, Phoenix By Craig C. Gillespie Dave Roscoe Counsel for Appellant
Arizona Attorney General’s Office, Phoenix By Joseph T. Maziarz Counsel for Appellee
Judge Samuel A. Thumma delivered the decision of the Court, in which Judge Patricia A. Orozco joined. Presiding Judge Randall M. Howe concurred in part and dissented in part.
¶1 Defendant James Raymond Gonzalez appeals from his kidnapping and sexual conduct with a minor convictions and resulting sentences. Gonzalez argues (1) the verdict forms were deficient; (2) insufficient evidence supports the sexual conduct with a minor conviction and (3) the superior court erred in imposing consecutive sentences. For reasons set forth below, the convictions are affirmed and the sentences are affirmed as modified.
FACTS AND PROCEDURAL HISTORY
¶2 The charges arise out of an incident in April 2009 when Gonzalez, the victim's cousin and the victim's uncle entered the victim's home. The victim, who was thirteen years old at the time, was home alone asleep on a couch with her two-year old twin sisters.
¶3 The victim testified that Gonzalez pulled down her pants, got on top of her and "put his penis in my vagina" and in her anus "a little bit" and it hurt. After Gonzalez got off her, the victim went to the bathroom and felt something "sticky" on her leg that looked "like spit[, ] like saliva." Gonzalez gave the victim $20 and told her "not to tell nobody." Gonzalez then sat in the living room between the victim's twin sisters.
¶4 A short time later, when the victim's mother returned home, the victim ran to meet her and told her what happened. The victim's mother started "hitting" and "stomping" on Gonzalez who was lying on the floor, pretending to be passed out or asleep, and eventually the Defendant left. The police were called several hours after the assault.
¶5 The State charged Gonzalez with Count 1, kidnapping, a Class 2 felony and dangerous crime against children; Count 2, sexual conduct with a minor under the age of fifteen (to wit: anal intercourse), a Class 2 felony and dangerous crime against children; and Count 3, sexual conduct with a minor under the age of fifteen (to wit: penile/vaginal intercourse), a Class 2 felony and dangerous crime against children.
¶6 After a six-day trial, the jury found Gonzalez guilty of Counts 1 and 2 but not guilty of Count 3. The superior court sentenced Gonzalez to "less than presumptive" prison terms of "15 flat years" for the kidnapping offense (Count 1) and "18 flat years" for the sexual conduct offense (Count 2), with the sentence for Count 2 to run consecutively to the sentence for Count 1. This court has jurisdiction over Gonzalez' timely appeal pursuant to Article 6, Section 9, of the Arizona Constitution and ...