FILED BY CLERK
IN THE COURT OF APPEALS MAY 27 2005
STATE OF ARIZONA COURT OF APPEALS
DIVISION TWO DIVISION TWO
THE STATE OF ARIZONA, )
) 2 CA-CR 2004-0096
Appellee, ) DEPARTMENT A
)
v. ) OPINION
)
KEVIN ALBERT JOHNSON, )
)
Appellant. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR-20032478
Honorable Virginia Kelly, Judge
Honorable Frank Dawley, Judge Pro Tempore
AFFIRMED
Terry Goddard, Arizona Attorney General
By Randall M. Howe, Karla Hotis Delord,
and David A. Sullivan Phoenix
Attorneys for Appellee
Robert J. Hooker, Pima County Public Defender
By John F. Palumbo Tucson
Attorneys for Appellant
E C K E R S T R O M, Judge.
¶1 Appellant Kevin Albert Johnson was convicted after a jury trial of attempted
sexual assault, burglary in the second degree, and theft of a credit card. The trial court
sentenced him to concurrent, presumptive prison terms of 3.5 years each on the attempted
sexual assault and burglary convictions and 1.5 years on the theft conviction. On appeal,
he argues that the evidence is insufficient to support his attempted sexual assault conviction
and that his sentences were imposed in violation of Blakely v. Washington, ___U.S.___, 124
S. Ct. 2531 (2004). We affirm.
¶2 We view the facts in the light most favorable to sustaining Johnson’s
convictions. See State v. Oaks, 209 Ariz. 432, ¶ 2, 104 P.3d 163, 164 (App. 2004). During
a social gathering at a neighbor’s house, D. invited several acquaintances including Johnson
to her own house to socialize and drink some alcohol. A short time later, D. told her guests
that she needed to go to sleep; they all left, she turned off the lights, locked the door, and
went to sleep.
¶3 D. awoke to find Johnson on top of her, kissing her inner thigh and trying to
take off her underwear. She pushed him away and asked how he had entered her house.
Johnson said that she had let him in. D. replied that she would remember having let him in
and asked him to leave. Johnson left her bedroom, but when D. went into the living room
to look for her cellular telephone, she saw Johnson in the kitchen, crouched between the
stove and the water heater and holding what appeared to be a bundled shirt near his chest.
She again asked him to leave and, when he went out the front door, she locked it behind
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him. After discovering that her kitchen window had been broken and some of her
possessions were missing, she ran to a nearby convenience store to call 911.
¶4 D. later had a sexual assault examination. A sample collected from her inner
thigh was found to contain a mixture of her and Johnson’s deoxyribonucleic acid (DNA).
When police officers searched her house, they found a knife on her bed that matched knives
in her kitchen. The officers also found an electrical cord that had been cut from her toaster
by her bedroom door and one from a power strip by the front door. Police located Johnson
outside a nearby apartment complex. When officers searched his vehicle, they found D.’s
cellular telephone, credit cards, and some of her jewelry inside.
¶5 Johnson argues that his conviction for attempted sexual assault is not
supported by sufficient evidence and, therefore, violates his due process rights. He maintains
that his acts were “mere[ly] preparatory and equivocal . . . and not the substantial step and
intent required for the offense of attempt.” When reviewing whether sufficient evidence
supports a criminal conviction, we determine if “any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979). “To set aside a jury
verdict for insufficient evidence it must clearly appear that upon no hypothesis whatever is
there sufficient evidence to support the conclusion reached by the jury.” State v.
Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987). In making this assessment, we
view the evidence in the light most favorable to sustaining the verdict. Id.
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¶6 Here, we must assess whether the state presented sufficient evidence from
which a jury could conclude beyond a reasonable doubt that (1) Johnson had intended to
commit a sexual assault and (2) that he had intentionally taken any “step in a course of
conduct planned to culminate” in the commission of a sexual assault. A.R.S. § 13-
1001(A)(2); see also State v. Fristoe, 135 Ariz. 25, 29-30, 658 P.2d 825, 829-30 (App.
1982) (“any step” equivalent to “substantial step” for purposes of attempt statute). A person
commits sexual assault by intentionally or knowingly engaging in oral sexual contact with
another person without that person’s consent. A.R.S. § 13-1406(A).
¶7 D.’s testimony that she had awakened to find Johnson on top of her, kissing
her thigh, and trying to pull down her underwear; the testimony that Johnson’s DNA had
been found on her thigh; the testimony about the knife found on her bed; and the testimony
about the cut electrical cords constitute evidence from which a rational jury could have
found beyond a reasonable doubt that Johnson had taken a substantial step toward engaging
in sexual contact with D. without her consent. We find no error in the jury’s verdict.
¶8 Johnson also argues that he was sentenced in violation of Blakely. The state
maintains that Johnson has waived the claim because he failed to raise it before the trial
court. Assuming without deciding that Johnson’s failure to raise the claim waived it, we may
grant relief notwithstanding waiver if we conclude fundamental error occurred. See State
v. White, 194 Ariz. 344, ¶ 45, 982 P.2d 819, 829 (1999). We have previously found that
a trial court’s imposition of a sentence in violation of a defendant’s right to a jury trial
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constitutes an illegal sentence and is therefore fundamental error. State v. Timmons, 209
Ariz. 403, ¶ 5, 103 P.3d 315, 317-18 (App. 2005); State v. Resendis-Felix, 209 Ariz. 292,
¶ 6, 100 P.3d 457, 459 (App. 2004). Accordingly, we address Johnson’s claim to determine
whether he received illegal sentences. We review de novo questions of law, such as a
challenge to the legality of a sentence. State v. Alvarez, 205 Ariz. 110, ¶ 6, 67 P.3d 706,
709 (App. 2003).
¶9 Johnson claims that, although the trial court did not impose aggravated
sentences, it “improperly found and weighed the aggravating factor of emotional harm to the
victim in determining [his] sentence[s].” “Other than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530
U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000). In Blakely, the
Court clarified that “the relevant ‘statutory maximum’ is not the maximum sentence a judge
may impose after finding additional facts, but the maximum he may impose without any
additional findings.” ___ U.S. at ___, 124 S. Ct. at 2537.
¶10 Under Arizona’s noncapital sentencing statutes, the maximum punishment
authorized by a jury verdict alone, without the finding of any additional facts, is the
presumptive term. See A.R.S. §§ 13-701(C) and 13-702(A) (setting forth presumptive prison
terms as required punishment absent trial court’s finding any aggravating or mitigating
factors). Indeed, the Arizona Supreme Court has specifically found that the maximum
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sentence for the purposes of Apprendi analysis is the presumptive term. State v. Brown, 209
Ariz. 200, ¶ 12, 99 P.3d 15, 18 (2004). Although the trial court considered and found an
aggravating factor not proved to the jury in determining Johnson’s sentences, it ultimately
imposed presumptive terms. Because that punishment does not exceed the statutory
maximum allowed by the jury verdicts alone, the trial court did not violate the requirements
of Apprendi and Blakely.
¶11 Johnson argues that the trial court’s mere consideration of an aggravating
factor not proved to the jury was a violation of his right to a jury trial on all the facts
essential to his punishment—even if his ultimate sentences do not exceed the statutory
maximum authorized by the verdicts. Specifically, Johnson maintains that his rights were
violated the moment he was “exposed to or subjected to the risk of an aggravated sentence”
based on the court’s improper consideration of an aggravating circumstance not found by
the jury. There is language in both Apprendi and Blakely, and in cases of our own, that
supports this argument. See, e.g., Apprendi, 530 U.S. at 483, 120 S. Ct. at 2359, 147 L. Ed.
2d at 450 (suggesting trial court exceeds constitutional boundaries if it makes a
determination that “exposes the criminal defendant to a penalty exceeding the maximum he
would receive if punished according to the facts reflected in the jury verdict alone”) (first
emphasis added); Blakely, ___ U.S. at ___ n.5, 124 S. Ct. at 2536 n.5 (“‘[E]very fact which
is legally essential to the punishment’ must be charged in the indictment and proved to a
jury.”), quoting 1 J. Bishop, Criminal Procedure ch. 6, at 50-56 (2d ed. 1872); State v.
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Benenati, 203 Ariz. 235, ¶ 13, 52 P.3d 804, 808 (App. 2002) (“[W]e choose to follow
Apprendi’s logic, and Ring’s [v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556
(2002),] clear message, that a fact exposing a defendant to increased sentencing, not the
actual sentence imposed, is the litmus test.”); see also State v. Pitre, 210 Ariz. 93, ¶ 17, 107
P.3d 939, 944 (App. 2005) (referring to “a defendant’s constitutional right to have the jury
find all factors that expose him to a sentence beyond the statutory maximum”) (second
emphasis added). And, we do not dispute that the aggravating factors played an essential
role in the punishment the trial court chose for Johnson.1
¶12 But the Supreme Court has also repeatedly emphasized since deciding
Apprendi that trial courts may freely consider other sentencing factors not found by a jury
in choosing a specific punishment that does not exceed the statutory maximum as defined
in Apprendi. As the Court cautioned in Apprendi: “We should be clear that nothing in [this
case] suggests that it is impermissible for judges to . . . [take] into consideration various
factors relating both to offense and offender—in imposing a judgment within the range
prescribed by statute.” 530 U.S. at 481, 120 S. Ct. at 2358, 147 L. Ed. 2d at 449; see also
Harris v. United States, 536 U.S. 545, 558, 122 S. Ct. 2406, 2415, 153 L. Ed. 2d 524, 538
(2002) (“Judicial factfinding in the course of selecting a sentence within the authorized range
1
Because the trial court was not required to specify either aggravating factors or
mitigating factors in imposing presumptive sentences, see State v. Bly, 127 Ariz. 370, 373,
621 P.2d 279, 282 (1980), we can only conclude that the court believed the analysis of both
factors was integral to its ultimate conclusion.
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does not implicate the indictment, jury-trial and reasonable-doubt components of the Fifth
and Sixth Amendments.”); United States v. Booker, ___ U.S. ___, 125 S. Ct. 738, 750
(2005) (same). Moreover, in context, the Supreme Court has described those facts “‘legally
essential to the punishment’” as nothing more than those that justify the statutory maximum,
in this case, the jury verdicts. Blakely, ___ U.S. at ___, 124 S. Ct. at 2537, quoting Bishop,
at 50-56. Thus, notwithstanding the Court’s use of broad language in some instances when
it described the scope of a defendant’s right to a jury trial as to facts that determine
punishment, it repeatedly has clarified that no constitutional violation occurs if the ultimate
sentence falls within the range authorized by the jury verdict alone.
¶13 Arizona courts that have squarely addressed the problem in light of the recent
clarifications of the issue articulated in Blakely, as subsequently confirmed by Booker, have
come to the same conclusion. State v. Miranda-Cabrera, 209 Ariz. 220, ¶ 34, 99 P.3d 35,
42-43 (App. 2004) (finding no Sixth Amendment violation when trial court weighs non-
Blakely-compliant aggravating circumstances against mitigating circumstances and resulting
sentence is below the presumptive); State v. Munninger, 209 Ariz. 473, ¶ 20, 104 P.3d 204,
211 (App. 2005) (commenting that “the use of a judge-found aggravating factor to increase
the minimum sentence . . . is not a Blakely problem because the right to jury trial applies
only if the factor increases the sentence beyond that which can be imposed based solely on
the jury verdict, i.e., a presumptive sentence under Arizona’s sentencing scheme”) (citation
omitted). We therefore hold that the trial court did not err when it considered an
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aggravating circumstance not found by the jury in sentencing Johnson, because it did not rely
on that circumstance to increase his punishment beyond the maximum authorized by the jury
verdicts alone.
¶14 Johnson also challenges the constitutionality of Arizona’s noncapital
sentencing statutes in light of Blakely. We summarily reject this argument for the reasons
stated in State v. Timmons, 209 Ariz. 403, ¶¶ 16-19, 103 P.3d 315, 320 (App. 2005);
accord State ex rel. Smith v. Conn, 209 Ariz. 195, ¶¶ 6-7, 98 P.3d 881, 883 (App. 2004).
¶15 Affirmed.
____________________________________
PETER J. ECKERSTROM, Judge
CONCURRING:
____________________________________
JOSEPH W. HOWARD, Presiding Judge
____________________________________
J. WILLIAM BRAMMER, JR., Judge
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