St. of AZ v Schaefer by blackrobe

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THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE

STATE OF ARIZONA, Appellee, v. DAVID RODNEY SCHAFFER, Appellant.

) ) ) ) ) ) ) ) ) )

1 CA-CR 07-0396 DEPARTMENT E MEMORANDUM DECISION (Not for Publication - Rule 111, Rules of the Arizona Supreme Court) AMENDED by order filed 8/4/08

Appeal from the Superior Court in Yavapai County Cause No. CR 2006-0807 The Honorable Warren R. Darrow, Judge AFFIRMED

Terry Goddard, Attorney General By Randall M. Howe, Chief Counsel Criminal Appeals Section and Aaron J. Moskowitz, Assistant Attorney General Attorneys for Appellee Law Office of Florence M. Bruemmer PC By Florence M. Bruemmer Attorneys for Appellant

Phoenix

Anthem

P O R T L E Y, Judge ¶1 conviction David Rodney Schaffer (“Defendant”) appeals from his and sentence for failure to register as a sex

offender,

on

grounds

of

insufficiency

of

the

evidence

and

prosecutorial misconduct.

For the following reasons, we affirm. FACTS

¶2

Defendant was convicted of attempted child molestation As a

in 1987 and required to register as a sex offender.

result, Defendant was required to notify the sheriff any time he changed his residence. Defendant failed to notify the sheriff’s

department of his residence change in June 2006 and was indicted for failure to comply with registration requirements. ¶3 guilty. 1 After a three-day trial, the jury found Defendant

He was sentenced to six years in prison and given Defendant

credit for 295 days of pre-sentence incarceration.

appeals, and we have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) (2003), 13-4031

(2001), and 13-4033(A)(1) (2001). DISCUSSION I. Sufficiency of the Evidence ¶4 Defendant argues that the State failed to offer

sufficient evidence to show that he knowingly failed to register as a sex offender. At the time of Defendant’s offense, the

registration requirements provided: Within seventy-two hours . . . after moving from the person’s residence within a county or after changing
1

The jury in Defendant’s first trial was unable to reach a verdict and the trial court declared a mistrial. 2

the person’s name, a person who is required to register under this article shall inform the sheriff in person and in writing of the person’s new residence, address or new name. A.R.S. § 13-3822(A) (Supp. 2007). This statute requires, as an

element of the crime, “defendant’s awareness of the statutory duty to register” or “proof of the probability that he had

knowledge of the requirement and thereafter failed to do so.” See State v. Garcia, 156 Ariz. 381, 383-84, 752 P.2d 34, 36-37 (App. 1987). ¶5 facts in In reviewing the sufficiency of evidence, we view the the light most favorable to upholding the jury's

verdict.

State v. Sullivan, 187 Ariz. 599, 603, 931 P.2d 1109, Evidence is sufficient when it is more than a

1113 (App. 1996).

mere scintilla and is such proof as could convince reasonable persons of a defendant’s guilt beyond a reasonable doubt. See

State v. Tison, 129 Ariz. 546, 553, 633 P.2d 355, 362 (1981); Ariz. R. Crim. of P. the 20(a). evidence “Reversible occurs only error where based there is on a

insufficiency

complete absence of probative facts to support the conviction.” State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (citation omitted). ¶6 show that We find that the evidence was more than sufficient to Defendant knowingly failed to register as a sex

offender between April 12, 2006, when he left his residence at

3

the

Church

on The

the

Street,

and

June

20, in

2006,

when

he

was that

arrested.

parties

stipulated,

pertinent

part,

“[D]efendant knew he was legally required to register as a sex offender.” County An investigative assistant clerk for the Yavapai Office testified that when Defendant first

Sheriff’s

registered as a sex offender in 2002, she specifically explained to him that within seventy-two hours of changing his residence, he was required to come in and re-register at the sheriff’s office with his new residence. The Sex Offender Registration

Forms admitted at trial demonstrated that Defendant had moved five times since he first registered in Yavapai County, and had registered his new “home street address” each time with the Yavapai County Sheriff’s Office. Moreover, on each occasion,

Defendant signed the form and checked a box on the registration form specifically acknowledging that he understood that he must notify change. ¶7 Defendant further asserts that there was insufficient the sheriff within seventy-two hours of any address

evidence to prove that he was notified of his duty to register as a transient when he did not have a permanent residence. evidence, however, belies his argument. Defendant The had There

previously registered at least one temporary new address.

was also testimony that he called the sheriff’s office to make

4

an appointment to change his address and noted that the change would be temporary. ¶8 Furthermore, the jury had evidence that Defendant was

specifically told that after he left the Church on the Street he needed to register his new address with the sheriff, even if it was under a tree. for The Prescott the police detective, sex who is

responsible

notifying

community

about

offenders

living within the city boundaries, testified that she discovered on April 12, 2006, that Defendant was no longer living at the Church on the Street. The detective met with Defendant the

following day when he came to the police department in response to a message that had been left with his employer. At that

time, she reiterated his duty to register any new address with the sheriff’s office, even if it was “under a tree.” She told

him that “we needed to know where the pine tree was because we would do a notification based upon the pine tree.” 2 She

testified that he told her at the time that he was living in Prescott Valley, but that he was planning on moving into an apartment in Prescott. She said Defendant acknowledged at the

time that he understood he had an obligation to register any new

2

In the past, sex offender registrants who did not have a permanent residence have been permitted to identify their residence as the intersection of two streets, under a mesquite tree at a campsite in Cottonwood, and in one instance, in a cave in the Dewey-Humboldt area.

5

address with the sheriff’s office within seventy-two hours.

She

testified that they talked about “wherever he was he needed to register.” ¶9 Finally, there was testimony that Defendant

acknowledged shortly before he was arrested that he was not in compliance with the registration requirement. After Defendant

left the Church on the Street, he lived for a brief time in a garage apartment at his sister’s in Prescott Valley, and then, between May 2006 and June 2006, he stayed at the apartment of a friend in Prescott. as an Upon discovering Defendant that he the had been

identified

absconder,

called

sheriff’s

office on June 12, 2006, and said that he had just moved into another apartment in the same complex. A few days later,

Defendant told a Yavapai County Sheriff’s Office detective that he was out of compliance with the registration requirement.

Consequently, there was sufficient evidence presented to allow the jury to determine that Defendant knowingly failed to

register as a sex offender. II. Prosecutorial Misconduct ¶10 misconduct detective Defendant by to argues the that the prosecutor County engaged in

allowing testify

Yavapai

Sheriff’s in the

Office second

during

cross-examination

trial that Defendant acknowledged he was not in compliance with the law, which, Defendant argues, had not been offered at the

6

first trial.

The challenged testimony in the second trial, While the detective was

however, was elicited by Defendant.

called by the prosecutor, he had no control over the detective’s testimony in response to Defendant’s line of questioning and thereby cannot have if engaged the in prosecutorial exerted misconduct. control had by the

Additionally, eliciting an

even

prosecutor

inconsistent

statement,

Defendant

still

opportunity to impeach the detective through cross-examination. ¶11 Moreover, Defendant fails to show a change in the

detective’s testimony.

At both trials, the detective testified

that Defendant admitted shortly before his arrest that he knew he was out of compliance with the registration requirement. detective also testified at both trials that The

Defendant

complained to her, after learning that he had been identified as an absconder, that he had been trying to re-register by leaving voice mails and “things like that.” Her testimony did not

change.

Accordingly, we find no prosecutorial misconduct.

7

CONCLUSION ¶12 For the foregoing reasons, we affirm Defendant’s

conviction and sentence.

MAURICE PORTLEY, Presiding Judge CONCURRING:

____________________________________ PATRICIA K. NORRIS, Judge

______________________________ ROBERT R. MOON, Judge 3

3

The Honorable Robert R. Moon, Judge of the Mohave County Superior Court, was authorized by the Chief Justice of the Arizona Supreme Court to participate in the disposition of this appeal pursuant to the Arizona Constitution, Article 6, Section 3, and A.R.S. §§ 12-145 to -147 (2003). 8


								
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