State v. Williams

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

IRVIN DARRYL WILLIAMS, SR., Appellant.

No. 1 CA-CR 16-0056
FILED 1-4-2017

Appeal from the Superior Court in Maricopa County
No. CR2014-117264-001
The Honorable Erin Otis, Judge

AFFIRMED

COUNSEL

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

The Stavris Law Firm PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant
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MEMORANDUM DECISION

Judge Patricia A. Orozco (Retired) delivered the decision of the Court, in
which Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined.

O R O Z C O, Judge:

¶1 Irvin Darryl Williams, Sr. (Defendant) appeals from his
convictions and sentences for sexual abuse, a class three felony, and a
dangerous crime against children (DCAC) (Count 1); molestation of a child,
a class two felony and a DCAC (Count 2); and molestation of a child, a class
two felony and a DCAC (Count 3). Defendant’s counsel filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon,
104 Ariz. 297 (1969), advising this Court that after a search of the entire
appellate record, no arguable ground for reversal exists. Defendant was
granted leave to file a supplemental brief in propria persona, and did so.

¶2 Our obligation in this appeal is to review “the entire record
for reversible error.” State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). We
have jurisdiction pursuant to Article 6, Section 9, of the Arizona
Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.1,
13-4031 and -4033.A.1 (West 2016).1 Finding no reversible error, we affirm.

FACTS2 AND PROCEDURAL HISTORY

¶3 Wife of Defendant (BW or Mother) is the mother of MH
(victim) and AW, victim’s step-sister. On April 9, 2014, BW learned from
MH and AW that Defendant inappropriately touched them. BW testified
she subsequently confronted Defendant and forced him to leave their
residence. BW took MH and AW to a police station, where both engaged
in forensic investigative interviews; MH with Detective F. and AW with
Detective S. Mother maintained contact with Defendant, fearing he would

1 We cite to the current version of applicable statutes absent any
material change.

2 We view the evidence in the light most favorable to sustaining the
convictions and resulting sentences. See State v. Guerra, 161 Ariz. 289, 293
(1989).

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leave town. On April 14, 2014, Mother went to Detective F.’s office and
initiated a phone call with Defendant, which was monitored and recorded
by Detective F. (the confrontation call or the call). During the call,
Defendant admitted he touched MH and AW inappropriately, but much of
the confrontation call’s recording was lost.

¶4 At trial, MH testified that when she and her family lived in a
house in Laveen, Arizona, between July 1, 2013 and November 30, 2013,
Defendant rubbed her stomach, while she was sick, laying on a couch.
Defendant then rubbed her breasts and vagina under her clothes.
Afterward, Defendant took MH’s hand and made MH rub his penis. MH
was fourteen years old at the time. MH testified Defendant also abused her
prior to their move to Arizona.

¶5 Detective F. testified that during the confrontation call,
Defendant denied having sex with the girls, but he did not deny touching
MH’s breasts and vagina. Defendant also stated he needed help regarding
his sexual aberration.

¶6 A jury found Defendant guilty of all three counts. The jury
subsequently found two aggravating factors: Defendant abused a position
of trust over the victim and his actions caused physical, emotional, or
financial harm to the victim.

¶7 Defendant was sentenced to lifetime probation for Count 1,
twenty years of imprisonment for Count 2, and twenty years of
imprisonment for Count 3, to run concurrently. The superior court gave
Defendant credit for 648 days of presentence incarceration. Defendant
timely appealed.

DISCUSSION

¶8 In his supplemental brief, Defendant raised several issues. As
this is an Anders appeal, for the issues not preserved, we review for
fundamental error. State v. Richardson, 175 Ariz. 336, 339 (App. 1993).

I. Sufficiency of the Evidence

¶9 “Reversible error based on insufficiency of the evidence
occurs only where there is a complete absence of probative facts to support
the conviction.” State v. Williams, 209 Ariz. 228, 231, ¶ 6 (App. 2004). For
each crime, the record must contain sufficient evidence to support the guilty
verdict beyond a reasonable doubt. See State v. Henry, 176 Ariz. 569, 576
(1993) (citation omitted).

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¶10 On Count 1, the State charged Defendant with sexual abuse.
Under A.R.S. § 13-1404, “[a] person commits sexual abuse by intentionally
or knowingly engaging in sexual contact with . . . any person who is under
fifteen years of age if the sexual contact involves only the female breast.”
Sexual contact 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.”
A.R.S. § 13-1401.A.3. Sexual abuse is designated by statute as a DCAC.
A.R.S. § 13-705.P.1.(j).

¶11 At trial, MH testified that Defendant touched her breast,
under her clothes, when she was fourteen years old.

¶12 Defendant was also charged with two counts of molestation
of a child (Counts 2 and 3). To molest a child, the State has to prove
Defendant “intentionally or knowingly engag[ed] in or caus[ed] a person
to engage 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 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.” A.R.S. § 13-
1401.A.3.

¶13 MH testified Defendant touched her vagina and caused her to
touch his penis, when she was fourteen years old. Based on the evidence,
we find there was sufficient evidence to support the jury’s verdicts.

II. Right to a Speedy Trial

¶14 Defendant argues his right to a speedy trial was violated,
because the superior court granted time extensions to the State merely due
to “trial conflicts.” We reject Defendant’s claim.

¶15 Arizona Rules of Criminal Procedure 8.2.a (Rule) required
that Defendant, a person in custody, be tried within 150 days from
arraignment. We review a superior court’s Rule 8 rulings for abuse of
discretion. State v. Spreitz, 190 Ariz. 129, 136 (1997).

¶16 Defendant was arraigned on April 30, 2014. Trial was
originally scheduled for August 27, 2014, 119 days after arraignment, but
did not start until October 20, 2015, 538 days after arraignment. A review
of the record demonstrates that 362 days were excluded from the speedy
trial calculation because they were either requested by Defendant, see Rule

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8.4.a, or resulted from his requests for trial continuances, see Rules 8.4.d and
8.5, or Defendant did not object to the State’s request.

¶17 The continuances requested by the State, to which Defendant
objected, amounted to 66 days. However, the superior court has discretion
to exclude from the computation continuances requested when
“extraordinary circumstances exist and that delay is indispensable to the
interests of justice.” Rule 8.5.b. The court excluded all of the 66-day delay
as necessary in the interests of justice, see Rule 8.4 and 8.5. We find no abuse
of discretion. See State v. Brooks, 127 Ariz. 130, 139 (App. 1980).

¶18 The trial, thus, began on the 110th day after arraignment, well
within the required 150 days, see Rule 8.2.

¶19 Defendant further argues his federally guaranteed right to a
speedy trial was violated. However, “[t]he speedy trial provisions of the
federal and state constitutions do not provide a specific time limit within
which trial must be held.” Henry, 176 Ariz. at 578; U.S. Const. amend. VI;
Ariz. Const. art. 2, § 24. Because the Arizona speedy trial requirements are
more stringent than the requirements annunciated by the United States
Supreme Court, see Spreitz, 190 Ariz. at 136, and because no violation of
Arizona law occurred here, we do not reach Defendant’s federal law
violation arguments.

III. Superior Court Rulings on Pretrial Motions

A. Confrontation Call Recording

¶20 Defendant argues the “State’s failure to disclose the
circumstances surrounding the [State’s] failure to preserve the entire
recording” contained exculpatory evidence, and the State therefore was
required to disclose it under Brady v. Maryland, 373 U.S. 83 (1963). Detective
F. testified that when he was uploading the tape and a separate tape of a
call from another case, a portion of the recording from the other case got
recorded over the confrontation call tape.

¶21 Defendant further argues he was prejudiced because he did
not have sufficient time to prepare a rebuttal of the call’s additional twenty
minutes, disclosed on the eve of trial. However, the additional twenty
minutes were not played for the jury so there was no rebuttal for him to
prepare. No error occurred.

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B. Sanction for Untimely Disclosed Evidence

¶22 Defendant also contends the superior court abused its
discretion in its choice of sanctions for the State’s untimely disclosure of the
additional twenty minutes of the confrontation call. Defendant argues
mistrial was the proper sanction.

¶23 We review the superior court’s choice of sanctions for abuse
of discretion. State ex rel. Thomas v. Newell, 221 Ariz. 112, 114, ¶ 6 (App.
2009). The court “shall impose any sanction it finds appropriate,” taking
into account “the significance of the information[,] . . . the impact of the
sanction[,] . . . and the stage of the proceedings.” Rule 15.7.

¶24 Here, the Defendant requested that, if the trial court was not
inclined to preclude the additional twenty minutes of the tape, he should
be granted a mistrial. The trial court precluded the State from playing the
additional twenty minutes. The Defendant got the relief he sought, we find
no error.

C. Nondisclosure of a Case Involving Witness AW

¶25 Defendant claims information regarding the criminal case
involving AW, as a victim, should have been disclosed to the jury pursuant
to Brady. Defendant contends disclosing AW and BW’s knowledge of those
proceedings and “sexual abuse charges” was relevant to victim’s credibility
and necessary for her impeachment, and because of that, he was denied a
fair trial.

¶26 The superior court precluded the evidence pursuant to A.R.S.
§ 13-1421.A3 as irrelevant and because none of the exceptions applied. No
error occurred.

3 Evidence of specific instances of the victim’s prior sexual conduct
may be admitted only if a judge finds the evidence is relevant and is
material to a fact in issue in the case . . . if the evidence is one of the
following:
1. Evidence of the victim’s past sexual conduct with the defendant.
2. Evidence of specific instances of sexual activity showing the source or
origin of semen, pregnancy, disease or trauma.
3. Evidence that supports a claim that the victim has a motive in accusing
the defendant of the crime.

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D. Nondisclosure of Complaints Against Detective F.

¶27 Defendant also asserted certain administrative inquiries into
Detective F.’s alleged mishandling of unrelated investigations were
improperly withheld from him.

¶28 However, none of the documents Defendant attached to his
supplemental brief indicate the reports resulted in any disciplinary action
against Detective F. Therefore, we find no error.

E. Voluntariness Hearing

¶29 Defendant asserts all statements recorded during the
confrontation call were involuntary and his convictions should be
dismissed because the court failed to conduct a voluntariness hearing.

¶30 The Arizona Supreme Court explained in State v. Keller that
“Miranda applies only to ‘questioning initiated by law enforcement officers
[a]fter a person has been taken into custody or otherwise deprived of his
freedom of action in any significant way.’” 114 Ariz. 572, 573 (1977)
(quoting Miranda v. Arizona, 384 U.S. 436, 444 (1966)). Because Defendant
was not in custody when the confrontation call was made, the admissions
were voluntary and we find no error.

F. Motion to Impeach AW

¶31 Defendant argues he was denied a fair trial because he was
precluded from cross-examining AW regarding her “delay” in reporting
the abuse from the time “it would have been natural for her to report it if it
was true.”

¶32 “A trial court has broad discretion to admit or exclude
evidence at trial.” State v. Oliver, 158 Ariz. 22, 30 (1988) (citation omitted).
“[T]he Sixth Amendment right to present evidence in one’s defense is
limited to evidence which is relevant and not unduly prejudicial.” Id.

¶33 AW was not the victim whose abuse the State charged in this
case. Furthermore, Defendant has not explained how AW not reporting the

4. Evidence offered for the purpose of impeachment when the prosecutor
puts the victim’s prior sexual conduct in issue.
5. Evidence of false allegations of sexual misconduct made by the victim
against others.

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abuse he allegedly inflicted on her sooner, would have effectively
impeached her. Therefore, the superior court did not abuse its discretion
when it excluded evidence of any alleged delay in AW’s reporting of her
own abuse.

G. Admission of Prior Acts Evidence

¶34 Defendant contends the superior court “created a new
standard” when it concluded “the jury could find by clear and convincing
evidence that the Defendant committed these other acts,” referencing his
abuse of AW. Defendant further asserts evidence regarding his abuse of
AW should not have been presented because MH could not explain details
of her abuse on other uncharged occasions. Additionally, Defendant
contends he should have received a mistrial, because he was unfairly
prejudiced when BW testified about Defendant abusing his “biological
daughter.”

¶35 When a defendant is charged with one of the sexual offenses
listed in A.R.S. § 13-1420.C (including sexual abuse and molestation of a
child), the State “may introduce ‘evidence of other crimes, wrongs, or acts,’
if the court finds that such evidence ‘provides a reasonable basis to infer
that the defendant had a character trait giving rise to an aberrant sexual
propensity to commit the crime charged.’” State v. Aguilar, 209 Ariz. 40, 47,
¶ 24 (2004) (quoting Ariz. R. Evid. 404(c)(1)(B)). “[T]he trial court must
determine that clear and convincing evidence supports a finding that the
defendant committed the other act.” Id. at 49, ¶ 30; Ariz. R. Evid.
404(c)(1)(A). We review the trial court’s rulings on admissibility of other
acts evidence for abuse of discretion. Aguilar, 209 Ariz. at 49, ¶ 29.

¶36 The superior court did not abuse its discretion in admitting
evidence of propensity as it listened to and watched the forensic interviews
with both MH and AW, as well as the confrontation call as agreed by the
parties. See Aguilar, 209 Ariz. at 50, ¶ 35 (holding credibility determination
based on observing victim’s account of the acts over defendant’s account
was necessary to find clear and convincing evidence). The court found that
a jury could find by clear and convincing evidence that Defendant
committed the other acts of sexual abuse and molestation, because the acts
and the surrounding circumstances were similar. See Rule 13.3.a.(1). The
court also found “a reasonable basis to infer the defendant had a character
trait beginning to arise from abhorrent sexual propensity to commit the
crime charged.” Lastly the court found the evidentiary value of the proof
of the other acts was not substantially outweighed by danger of unfair
prejudice. We find no abuse of discretion.

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IV. Due Process Violations

A. Grand Jury Proceeding

¶37 Defendant alleges that Detective F. committed perjury when
he testified to the grand jury about what he observed during the
confrontation call, as opposed to what was recorded. We cannot consider
claims regarding grand jury proceedings. State v. Agnew, 132 Ariz. 567, 573
(App. 1982).

B. Allegations of Perjury by Witnesses During Trial

¶38 Defendant further argues BW perjured herself during her
testimony regarding her experience with the “judicial system.”

¶39 However, BW’s experience with the judicial system does not
“go to the foundation of the case.” See Henderson, 210 Ariz. at 567, ¶ 20.
Defendant also failed to demonstrate how this alleged error prejudiced him.
See id.

¶40 Next, Defendant claims that Detective F. perjured himself
during his testimony as to the time arrangements of the confrontation call.
Again, Defendant has shown no prejudice and thus no fundamental error.
See id. at ¶ 24.

¶41 Finally, Defendant asserts witness AW perjured herself
regarding reasons for delaying telling she was also abused by Defendant.
However, the State did not bring charges based on AW’s abuse, so this
information does not go to the foundation of the case. See id.

C. Striking a Juror for Cause

¶42 Defendant argues juror 30 should have been stricken for
cause, because he interned at the Maricopa County prosecutor’s office, and
because his mother worked for Maricopa County as well. Defendant struck
juror 30, so even if it was error to not strike him, he did not participate as a
juror and any error was harmless.

D. Right to Self-Representation

¶43 Defendant argues he was denied a right to represent himself
when he was excluded from bench conferences, while his advisory counsel
was present, and when he was forced to be represented by an attorney
against his will.

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¶44 Defendant was represented by counsel until the final pretrial
management conference, when Defendant moved to change counsel and
represent himself. On the record, the Defendant knowingly, intelligently,
and voluntarily waived representation by legal counsel and the court
appointed an advisory counsel. Defendant agreed that once he had an
opportunity to represent himself, but subsequently requested a return of a
legal counsel, he would not be able to re-represent himself.

¶45 In his brief, Defendant does not point to any specific instances
of when he was denied a right to represent himself. Because Defendant was
representing himself, we cannot say his rights were violated.

V. Prosecutorial Misconduct

A. Comments on Defendant’s Statements to the Police

¶46 Defendant argues the State made improper comments during
its closing argument which were not supported by the evidence. The State
argued during closing argument that when the police contacted Defendant
and asked him why he was homeless, “he [didn’t] tell them, crazy wife and
her messed-up daughters are making false allegations . . . he ma[de]
something up.” Defendant asserts that “[t]he simple answer to the State’s
question [why [didn’t] he tell them?] is that the defendant chose to exercise
his right to remain silent and not to testify.”

¶47 In its closing argument, the State commented on the
information Defendant provided to the police officer while the officer was
taking him to custody; not on Defendant’s right to remain silent.

¶48 Defendant also argues that the prosecutor’s comments about
him being kicked out of the home by BW was not supported by the
evidence. BW testified that after she confronted Defendant with allegations
by MH and AW, she “told him to get out.” No error occurred.

B. Comments on Witness Credibility

¶49 Defendant also complains the prosecutor “vouched” for BW’s
credibility. During closing arguments, the prosecutor pointed out
disagreement in testimony and then stated “So, yes, [BW’s] testimony may
be inconsistent when it comes to things she didn’t see or couldn’t perceive
because she was irrational and emotional, but what she - - her testimony
fits in with what you’ll hear in the confrontation call.” The prosecutor’s
comments did not vouch for BW’s credibility.

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¶50 “When determining whether a prosecutor’s statements
improperly vouched for a witness’s credibility, the statements must be
considered in context.” State v. Ramos, 235 Ariz. 230, 238, ¶ 28 (App. 2014)
(citation omitted). Moreover, the trial court “instructed the jury that the
attorneys’ closing arguments were not evidence, and we presume the jurors
followed the court’s instructions.” Id. at ¶ 30. We find no error in the
prosecutor’s comments.

C. Other Comments

¶51 Defendant further argues the prosecutor improperly asked
Detective F. about the content of excluded portions of the confrontation call.
The court precluded the State from playing the recovered portions of the
confrontation call, but did not preclude the witnesses who heard the tape
from testifying as to its contents. Because Detective F. had personal
knowledge of the whole confrontation call, the prosecutor’s questioning
was not error. Defendant further argues that the prosecutor misstated the
victim’s position on the couch and the difference between ”fly” and “sly.”
However, we are unable to locate any misstatements that Defendant
complains of, therefore, the issue is waived.

VI. Judicial Bias

¶52 Defendant alleges the trial judges were biased. First, he
alleges that Commissioner Otis prosecuted a criminal case involving AW,
as a victim, and failed to give adequate instructions to the jury. However,
Defendant has not pointed to anything Commissioner Otis did to indicate
bias and has not explained which jury instruction the court failed to give.

¶53 Defendant also alleges that Judge Fenzel called him a “fool,”
“made sure [Defendant] would not be ready for trial,” and refused to
change Defendant’s counsel.

¶54 “[D]efendant must allege a type of [judicial] bias that would
implicate his due process rights, such as bias based on a ‘direct, personal,
substantial pecuniary interest,’ in order to constitute [structural] error.”
State v. Granados, 235 Ariz. 321, 325, ¶ 11 (App. 2014). “Other types of bias,
such as ‘[p]ersonal bias or prejudice, . . . ‘would not be [a] sufficient basis
for imposing a constitutional requirement under the Due Process Clause.’”
Id.

¶55 Defendant filed a motion to change counsel and to represent
himself on November 25, 2014. The motion was granted on January 27,
2015, after Defendant assured the court that he would be ready to proceed

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with trial the following week. We find no bias by Judge Fenzel in granting
Defendant’s motion and no basis for the claim that Judge Fenzel made sure
he would not be ready for trial.4

¶56 During that same hearing, Judge Fenzel did not call
Defendant a fool, he merely cautioned Defendant about representing
himself and told him of the saying “[h]e who represents himself has a fool
for a client.” We find no bias in the judge’s cautionary remarks.

¶57 Defendant finally argues that Judge Fenzel advocated the case
for the State, consulted on matters with Defendant’s own advisory counsel
without Defendant being present, and “refused to require the State to
respond to discovery request.” Rule 31.13.c(1)(vi) requires each argument
to provide “citations to the . . . parts of the record relied on”; failure to do
so can constitute waiver of that claim. Defendant has not provided citations
to the record, he has therefore waived these issues.

VII. Cumulative Error

¶58 Defendant asserts cumulative error. “We have never
recognized a ‘cumulative error’ theory . . . [i]nstead, we evaluate each of
defendant’s claimed errors and determine if it, independently, requires
reversal.” State v. Prince, 160 Ariz. 268, 274 (1989).

CONCLUSION

¶59 We have read and considered counsel’s brief, carefully
searched the entire record for reversible error and found none. Clark, 196
Ariz. at 541, ¶ 49. All of the proceedings were conducted in compliance
with the Arizona Rules of Criminal Procedure and substantial evidence
supported the finding of guilt. Defendant was present and represented by
counsel at all critical stages of the proceedings. At sentencing, Defendant
and his counsel were given an opportunity to speak and the court imposed
a legal sentence.

¶60 Counsel’s obligations pertaining to Defendant’s
representation in this appeal have ended. Counsel need do nothing more
than inform Defendant of the status of the appeal and his future options,
unless counsel’s review reveals an issue appropriate for submission to the
Arizona Supreme Court by petition for review. State v. Shattuck, 140 Ariz.
582, 584-85 (1984). Defendant shall have thirty days from the date of this

4 We note that while the motion for change of counsel was granted on
January 27, 2015, the trial did not actually start until October 2015.

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decision to proceed, if he so desires, with an in propria persona motion for
reconsideration or petition for review.

¶61 For the above reasons, we affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

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