State v. Barragan

1

The State of Arizona, Appellee, v. Fabian Lomas Barragan, Appellant.

No. 2 CA-CR 2023-0061

Court of Appeals of Arizona, Second Division

August 24, 2023

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No CR2021102616001 The Honorable Laura M. Reckart, Judge

COUNSEL

Kristin K. Mayes, Arizona Attorney General Alice M. Jones Deputy Solicitor General/Section Chief of Criminal Appeals By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee

Gary Kula, Maricopa County Public Defender By Damon A. Rossi Deputy Public Defender, Phoenix Counsel for Appellant

Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Vasquez and Judge Gard concurred.

MEMORANDUM DECISION

EPPICH, Presiding Judge:

¶1 Fabian Lomas Barragan appeals from his convictions and sentences for nine counts of sexual conduct with a minor, five counts of molestation of a child, and one count of sexual abuse. He asserts the trial court erred by denying his motion for judgment of acquittal for one count of sexual conduct with a minor and by not providing verdict form interrogatories to prevent nonunanimous verdicts on the sexual conduct with a minor counts. For the following reasons, we reverse Barragan's conviction and sentence for count seven (molestation of a child), but we otherwise affirm his convictions and sentences.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to sustaining the jury's verdicts. State v. Rodriguez, 251 Ariz. 90, ¶ 2 (App. 2021). Between August 2015 and January 2021, Barragan committed multiple acts of sexual misconduct against his minor step-daughter, Y.L. After Y.L. reported the abuse to a friend and family member, Barragan was arrested and made multiple incriminating statements to police.

¶3 Barragan was convicted as described above and sentenced to consecutive and concurrent terms of imprisonment totaling 268 years. This appeal followed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Discussion

I. Double Jeopardy

¶4 Barragan first asserts the trial court erred by denying his motion for judgment of acquittal on count seven, a charge of sexual conduct with a minor.^[1] He contends this error resulted in a violation of his right to be free from double jeopardy. We review de novo whether a double jeopardy violation has occurred, State v. Ortega, 220 Ariz. 320, ¶ 8 (App. 2008), and because we conclude that Barragan's right to be free from double jeopardy was violated, we need not reach whether the court erred by denying his motion for judgment of acquittal, see State v. Wood, 180 Ariz. 53, 64 (1994) (need not reach raised issue given dispositive conclusion).

¶5 Count seven of the indictment charged Barragan with intentionally or knowingly engaging in sexual intercourse or oral sexual contact with Y.L. between August 1, 2019, and March 1, 2020, "to wit[:] penile/vaginal - time in her bedroom." Count eight charged intentional or knowing molestation of Y.L. during the same time frame, "to wit[:] digital/genital - time in her bedroom." Although Barragan was acquitted of count seven, he was found guilty of the lesser-included crime of molestation of a child. For the first time on appeal, Barragan argues that because the jury also found him guilty of count eight, he was convicted twice for a single molestation of a child offense-a double jeopardy violation. The state asserts the evidence supported guilty verdicts on both counts.

¶6 "The Double Jeopardy Clauses of the United States and Arizona Constitutions protect criminal defendants from multiple convictions and punishments for the same offense." Ortega, 220 Ariz. 320, ¶ 9; see also U.S. Const. amend. V; Ariz. Const. art. II, § 10. A double jeopardy violation occurs "if multiple violations of the same statute are based on the same conduct" and result in more than one conviction for a single offense. State v. Jurden, 239 Ariz. 526, ¶ 11 (2016); see also Ortega, 220 Ariz. 320, ¶ 9 (multiplicitous charges do not violate double jeopardy but multiplicitous convictions do). Even if a defendant fails to object in the trial court, "a successful double jeopardy claim constitutes fundamental, prejudicial error." Rodriguez, 251 Ariz. 90, ¶ 6.

¶7 Molestation of a child requires proof that a person "intentionally or knowingly engag[es] in . . . sexual contact, except sexual contact with the female breast, with a child who is under fifteen years of age." A.R.S. § 13-1410(A). "Sexual contact" is any "direct or indirect touching, fondling or manipulating of any part of the genitals . . . by any part of the body." A.R.S. § 13-1401(A)(3)(a).

¶8 We agree with Barragan that the evidence here only supports one conviction for molestation of a child related to the "time in [Y.L.'s] bedroom." At the time of trial in 2022, Y.L. was twelve years old and entering eighth grade. She testified there "were a couple times" in her bedroom in fifth grade when Barragan touched her, however, she only referred to one time in which he touched her "private part," where she "go[es] pee," with "his hand." She stated this occurred when Barragan entered her bedroom a second time after initially trying to wake her up. She further stated that no "other part of his body touch[ed her]" at this time.

¶9 The state asserts Y.L.'s testimony that Barragan "actually touch[ed her]" when he first entered her bedroom reasonably sustains a second molestation verdict. In support, the state points to Y.L.'s earlier testimony in which she had stated that when Barragan lived with her, he "would touch [her]" which meant that he had touched her "[w]ith his hand" on the part of the body she uses "[t]o go pee." Consequently, the state contends that Y.L.'s statement that Barragan "actually touch[ed her]" in her bedroom did not merely refer to non-sexual contact.

¶10 Y.L.'s earlier testimony, however, was specifically related to the "first time" Barragan had molested her when she was five or six years old. The jury separately found Barragan guilty of charges related to the "first time." Thus, it is not reasonable to conclude that just because Y.L. had referred to Barragan's prior sexual contact as him "touch[ing her]" that her later repeated reference to him "touch[ing her]" also necessarily referred to sexual contact. Further, Y.L. had specified that Barragan was "pulling [her] by [her] feet" and "grabb[ing] [her] by [her] legs" the first time he came into her bedroom. See § 13-1401(A)(3)(a) (requiring contact with genitals). Accordingly, Y.L.'s affirmative answer to the question, "Did he actually touch you?," does not alone support an inference that Barragan had "touch[ed], fondl[ed] or manipulat[ed] . . . any part of [her] genitals" the first time he came into her bedroom. Id.; see Ortega, 220 Ariz. 320, ¶ 27 (broad question, "[D]id he also touch you?" and "nonspecific response" of "[h]e would also touch me," could not support molestation conviction).

¶11 The additional evidence presented at trial similarly does not support two convictions for molestation of a child for the "time in [Y.L.'s] bedroom." The state also presented testimony from the investigating detective, a pediatrician who had examined Y.L., and a forensic interviewer who had no firsthand knowledge of the case. In the interviews with the detective, the only statement Barragan made in relation to Y.L.'s bedroom was that he had kissed Y.L. on her "waist" in her bedroom three years ago- repeatedly denying that he had made contact with her genitals at that time. The pediatrician was unable to draw any conclusions from her exam of Y.L. and did not relate any of her findings to a specific instance of sexual misconduct.^[2]

¶12 Because Barragan was convicted of "multiple violations of the same statute . . . based on the same conduct," his right to be free from double jeopardy was violated. See Jurden, 239 Ariz. 526, ¶ 11; Ortega, 220 Ariz. 320, ¶¶ 9, 28. Accordingly, we reverse Barragan's conviction and sentence for molestation of a child pursuant to count seven of the indictment.

II. Duplicitous Charging

¶13 Barragan next asserts the trial court erred by failing to provide interrogatories for the jury to specifically determine whether the charges of sexual conduct were based on penetration or masturbatory contact. He contends the lack of interrogatories resulted in duplicitous charging which risked nonunanimous verdicts. We review the adequacy of a court's verdict forms and issues of juror unanimity de novo. State v. Dann, 220 Ariz. 351, ¶ 70 (2009) (verdict forms); State v. Valentini, 231 Ariz. 579, ¶ 5 (App. 2013) (unanimity).

¶14 While discussing the final jury instructions, Barragan argued that with respect to the sexual conduct charges, the jury would need to determine whether penetration occurred because, if so, there is different sentencing. Compare A.R.S. § 13-705(B) (mandatory life imprisonment for adult convicted of sexual conduct with minor under twelve, excluding masturbatory contact), with § 13-705(C) (trial court's discretion to sentence to life imprisonment for adult convicted of sexual conduct with minor under twelve except as otherwise provided by § 13-705). He subsequently argued that the interrogatories were also necessary for "unanimous decision[s]."

¶15 The state responded that the requested interrogatories were only necessary for sentencing purposes and that if the jury were to convict without the interrogatories, the state would not argue that Barragan must receive mandatory life sentences. Rather, any life sentences would be in the trial court's discretion. It asserted there was no concern...