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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
DARREN THEOTIS PENDLETON,
Appellant.
No. 1 CA-CR 20-0186
FILED 8-12-2021
Appeal from the Superior Court in Maricopa County
No. CR2016-147535-001
The Honorable George H. Foster, Judge Retired
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Linley Wilson
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Thomas K. Baird
Counsel for Appellant
STATE v. PENDLETON
Decision of the Court
MEMORANDUM DECISION
Presiding Judge James B. Morse Jr. delivered the decision of the Court, in
which Judge Maria Elena Cruz and Judge Paul J. McMurdie joined.
M O R S E, Judge:
¶1 Darren Pendleton appeals his convictions and sentences for
molestation of a child and sexual conduct with a minor. Counsel for
Pendleton filed a brief in which he states he could find "no arguable
question of law that is not frivolous," but notes that Pendleton wants us to
review the trial court's denial of severance. Further, citing Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), counsel
requests we review the record for fundamental error. Pendleton was given
the opportunity, but did not file a pro per supplemental brief. After
reviewing the entire record, we find no fundamental error and affirm
Pendleton's convictions and sentences.
FACTS AND PROCEDURAL BACKGROUND
¶2 In October 2016, a grand jury indicted Pendleton on various
sex-offense charges against two unrelated child victims ("Child A" and
"Child B"). Six of the nine charges related to Child A, and included
molestation (Count 1), attempted molestation (Count 3), attempted sexual
conduct (Count 2), sexual abuse (Count 4), furnishing obscene or harmful
items (Count 5), and public sexual indecency (Count 6). Count 4 was
amended at trial to attempted sexual abuse. The remaining three charges
related to Child B, and included molestation (Counts 7 and 8) and sexual
conduct (Count 9). The trial court denied Pendleton's motion to sever trial
of charges involving Child A from charges involving Child B.
¶3 Pendleton was tried from November to December 2019.
Child A testified that Pendleton came into her bedroom one night, moved
his hand up her leg, and was "trying to go towards" her vagina. Child A
also testified that Pendleton attempted to touch her breast while the two
were watching television. Pendleton testified in his defense and denied
touching Child A in an inappropriate manner.
¶4 Child B testified that before driving her to school one day,
Pendleton "came in [her] room and . . . pulled [her] pants down and covered
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STATE v. PENDLETON
Decision of the Court
[her] eyes" and proceeded to lick her vagina and tickle her vagina with his
fingers. Pendleton denied performing oral sex on Child B.
¶5 Pendleton moved for judgment of acquittal on Counts 4 and
5. The court denied the motion as to Count 4 but granted it as to Count 5.
¶6 The jury acquitted Pendleton on all counts related to Child A.
The court declared a mistrial as to Count 7 after the jury was unable to reach
a unanimous verdict.1 The jury convicted Pendleton on Counts 8 and 9.
The jury found that Child B was under twelve years of age at the time of
the sexual conduct.
¶7 The court sentenced Pendleton to consecutive terms of life
imprisonment with the possibility of release after 35 years on Count 9 and
17-years' imprisonment on Count 8. The court applied 1,255 days of
presentence incarceration credit to Pendleton's sentence on Count 8.
¶8 Pendleton timely appealed. We have jurisdiction under
A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).
DISCUSSION
¶9 Because this is an Anders appeal, we review the entire record
for fundamental error. See State v. Flores, 227 Ariz. 509, 512, ¶ 12 (App.
2011). Fundamental error is (1) prejudicial error that goes to the foundation
of the case, (2) prejudicial error that takes a right essential to the defense, or
(3) error that is so egregious that the defendant could not have received a
fair trial. State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018). "We view the
facts in the light most favorable to sustaining the convictions with all
reasonable inferences resolved against the defendant." State v. Valencia, 186
Ariz. 493, 495 (App. 1996).
A. Pretrial.
¶10 Counsel informs us that Pendleton suggested we review the
trial court's decision not to sever the charges. The trial court denied
severance, determining that evidence of the alleged offenses against one of
the child victims would be cross-admissible to show that Pendleton "had a
character trait giving rise to an aberrant sexual propensity to commit" the
alleged offenses against the other child victim. See Ariz. R. Evid. 404(c).
1 The court granted the State's motion to dismiss Count 7 without
prejudice at Pendleton's sentencing hearing.
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STATE v. PENDLETON
Decision of the Court
¶11 Before admitting other-act evidence to show a defendant has
a character trait giving rise to an aberrant sexual propensity, a court must
make the following findings:
First, the trial court must determine that clear and convincing
evidence supports a finding that the defendant committed the
other act. Second, the court must find that the commission of
the other act provides a reasonable basis to infer that the
defendant had a character trait giving rise to an aberrant
sexual propensity to commit the charged sexual offense.
Third, the court must find that the evidentiary value of proof
of the other act is not substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or other factors
mentioned in Rule 403. In making the determination under
Rule 403, the court also must consider the factors listed in
Rule 404(c)(1)(C)(i)-(viii). Finally, the rule requires the trial
judge to make specific findings with respect to each of the
prerequisites for admission under the rule.
State v. Aguilar, 209 Ariz. 40, 49, ¶ 30 (2004) (citations omitted).
¶12 The trial court made the required findings. First, the court
found that Child A's and Child B's recorded testimonies describing
Pendleton's inappropriate touching constituted "credible, clear and
convincing evidence that [Pendleton] committed the other act." This was a
permissible finding. See State v. LeBrun, 222 Ariz. 183, 187-88, ¶¶ 13, 15-16
(App. 2009) (finding audio-taped testimony of the victims' "own statements
and first-person accounts" was sufficient for the court to find clear and
convincing evidence that defendant committed other acts of sexual
misconduct).
¶13 Second, the court found the other-act evidence provided "a
reasonable basis to infer that [Pendleton] had a character trait giving rise to
an aberrant propensity to commit the charged sexual offenses with minors."
¶14 Third, the court determined that "the evidentiary value of
proof of the other act [was] not substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or other factors set forth in Rule
403 . . . ." The court considered the factors listed in Rule 404(c)(1)(C),
including: (i) the less than one-year time period separating the acts; (ii) the
similar nature of the acts; (iii) the victims' "credible, clear, and convincing
statements;" (iv) "the frequency of both acts;" and (v) the circumstances in
which the acts occurred—in both cases, Pendleton being "left alone with
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STATE v. PENDLETON
Decision of the Court
and entrusted with the care of each victim by the mother of each victim . . .
." The court discounted any dissimilarities between the two allegations as
not material; although Child A alleged more inappropriate conduct than
Child B, Child A "was also exposed to [Pendleton] for a longer period of
time." The court did not find "any relevant intervening events or other
relevant factors."
¶15 On this record, we cannot say the court erred, much less
fundamentally erred, in denying severance. See generally State v. James, 242
Ariz. 126, 131, ¶ 16 (App. 2017) ("[C]lear and convincing evidence of
sexually aberrant acts provides 'assurance that the other act indeed
occurred,' thereby helping to 'assur[e] that probative need over-balances
the potential for unfair prejudice.'" (quoting State v. Garcia, 200 Ariz. 471,
476, ¶ 31 (App. 2001))).
B. Trial.
¶16 We do not find error in the trial proceedings. Pendleton was
represented by counsel at all stages of the proceedings. The jury was
properly composed of twelve jurors. See A.R.S. § 21-102(A). The trial court
properly instructed the jury on the presumption of innocence, the burden
of proof, the elements of the charges against Pendleton, and the necessity
of a unanimous verdict. There was sufficient evidence to support the
convictions.
C. Sentencing.
¶17 The trial court properly sentenced Pendleton. The court
received a presentence report, and Pendleton was given an opportunity to
speak at sentencing. See Ariz. R. Crim. P. 26.4, 26.10(b)(1). Pendleton's 17-
year sentence on Count 8 was within the statutory limits. See A.R.S. § 13-
705(D). His life sentence on Count 9 was proper because Child B was under
twelve years of age at the time of the sexual conduct. See A.R.S. § 13-705(A).
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STATE v. PENDLETON
Decision of the Court
CONCLUSION
¶18 We affirm Pendleton's convictions and sentences. Defense
counsel shall inform Pendleton of the status of the appeal and his future
options. Defense counsel has no further obligations unless he finds an issue
appropriate for submission to the Arizona Supreme Court by petition for
review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Pendleton shall
have thirty days from the date of this decision to proceed, if he desires, with
a pro per motion for reconsideration or petition for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
6