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State v. Gulli

Court of Appeals of Arizona, Second Division

March 2, 2017

The State of Arizona, Appellee,
v.
Ronald Paul Gulli, Appellant.

         Appeal from the Superior Court in Pima County No. CR20122523001 The Honorable Danelle B. Liwski, Judge

          Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel, Phoenix By Amy M. Thorson, Assistant Attorney General, Tucson Counsel for Appellee

          Dean Brault, Pima County Legal Defender By Stephan J. McCaffery, Assistant Legal Defender, Tucson Counsel for Appellant

          Judge Vásquez authored the opinion of the Court, in which Presiding Judge Howard and Chief Judge Eckerstrom concurred.

          OPINION

          VÁSQUEZ, Judge.

         ¶1 After a jury trial, Ronald Gulli was convicted of twenty- six counts of sexual exploitation of a minor and two counts of sexual conduct with a minor. The trial court sentenced him to consecutive prison terms totaling 482 years. On appeal, Gulli argues the court erroneously instructed the jury on the meaning of "sexual conduct" and his sentences for sexual exploitation violate his right to be free from cruel and unusual punishment. For the following reasons, we vacate Gulli's convictions and sentences for sexual conduct with a minor, but we otherwise affirm.

         Factual and Procedural Background

         ¶2 We view the facts and all reasonable inferences therefrom in the light most favorable to sustaining Gulli's convictions. See State v. Williams, 236 Ariz. 600, ¶ 2, 343 P.3d 470, 471 (App. 2015). In June 2012, after Gulli's wife became concerned about his persistent interest "in being with children" that "didn't seem natural, " she went "snoop[ing]" in his home office and found a video disk containing photographs of naked young girls who appeared to be between eight years old and early teens. She copied the photos to a thumb drive and took it to the police department. Officers obtained a search warrant and seized Gulli's computer. On it, they found twenty-four videos of female children engaged in various sexual acts. They also found two photographs of eleven-year-old M.M., taken on separate dates, lying down with a wooden dowel in her anus. M.M. was friends with Gulli's nine- and twelve-year-old daughters.

         ¶3 A grand jury indicted Gulli for twenty-six counts of sexual exploitation of a minor under fifteen, two counts of sexual conduct with a minor under fifteen, and one count each of sexual abuse of a minor under fifteen and molestation of a child. On the state's motion, the trial court dismissed the child-abuse and molestation charges. The jury found Gulli guilty of the remaining offenses, and the court sentenced him to seventeen-year prison terms for each of the sexual-exploitation counts and twenty-year prison terms for each of the sexual-conduct counts, all to be served consecutively. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21 (A)(1), 13-4031, and 13-4033(A)(1).

         Jury Instructions

         ¶4 Gulli argues the trial court erred by instructing the jury on the definition of "sexual conduct." He acknowledges that, because he failed to raise this argument below, he has forfeited review for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607-08 (2005). Under this standard, Gulli must show that error exists, that it was fundamental, and that the error caused him prejudice. See State v. Juarez-Orci, 236 Ariz. 520, ¶ 11, 342 P.3d 856, 859-60 (App. 2015). We review de novo whether a jury instruction correctly states the law. State v. Hausner, 230 Ariz. 60, ¶ 107, 280 P.3d 604, 627 (2012).

         ¶5 Pursuant to A.R.S. § 13-1405(A), "[a] person commits sexual conduct with a minor by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person who is under eighteen years of age."[1] "Sexual intercourse" is defined as "penetration into the penis, vulva or anus by any part of the body or by any object or masturbatory contact with the penis or vulva." A.R.S. § 13-1401 (A)(4).[2] "Oral sexual contact" means "oral contact with the penis, vulva or anus." § 13-1401(A)(1). Consistent with these statutes, the grand jury indicted Gulli for sexual conduct with a minor under fifteen in amended counts 25 and 26 for "engaging in an act of sexual intercourse with [MM.]" by "inserting a wooden dowel into [her] anus."

         ¶6 The final jury instructions included a description of the proof required for "sexual conduct with a minor" consistent with § 13-1405(A) and a definition of "sexual intercourse" pursuant to § 13-1401 (A)(4).[3] However, the trial court also specifically instructed the jury, "Regarding Counts 25 [and] 26: 'Sexual Conduct' means any direct or indirect touching, fondling, or manipulating of any part of the genitals, anus or female breast by any part of the body or by any object or causing a person to engage in such contact." (Emphasis added.)

         ¶7 Gulli points out that the jury instructions' additional language for the meaning of "sexual conduct" mirrors the definition for "sexual contact" under § 13-1401 (A)(3), which is "legally irrelevant" to § 13-1405(A). In addition, he argues the trial court committed fundamental, prejudicial error by giving this instruction because it "amplified the definition of the crime" and "allowed the jury to convict [him by finding] that he caused M.M. to place the dowel in her own anus." The state ...


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