State v. Hoffman ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
MICHAEL JAMES HOFFMAN, Appellant.
No. 1 CA-CR 14-0199
FILED 1-28-2016
Appeal from the Superior Court in Maricopa County
No. CR2012-007254-001
The Honorable Warren J. Granville, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Andrew S. Reilly
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Terry J. Reid
Counsel for Appellant
STATE v. HOFFMAN
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Samuel A. Thumma joined.
J O N E S, Judge:
¶1 Michael Hoffman appeals his convictions and sentences for
seven counts of sexual assault, four counts of kidnapping, one count of
sexual abuse, one count of attempted sexual assault, and one count of public
sexual indecency. After searching the entire record, Hoffman’s defense
counsel has identified no arguable non-frivolous question of law.
Therefore, in accordance with Anders v. California, 386 U.S. 738 (1967), and
State v. Leon, 104 Ariz. 297 (1969), defense counsel asks this Court to search
the record for fundamental error. Hoffman filed a supplemental brief in
propria persona. After reviewing the record, we find no error. Accordingly,
Hoffman’s convictions and sentences are affirmed.
FACTS1 AND PROCEDURAL HISTORY
¶2 In May 2012, Hoffman was indicted on seven counts of sexual
assault, four counts of kidnapping, two counts of sexual abuse, one count
of attempted sexual assault, and one count of public sexual indecency based
upon events occurring between October 2004 and September 2011.2 At trial,
1 We view the facts in the light most favorable to sustaining the jury’s
verdict, with all reasonable inferences resolved against the defendant. State
v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (quoting State v. Valencia, 186
Ariz. 493, 495 (App. 1996)).
2 Count one alleged sexual assault of C.P., count two alleged
attempted sexual assault of C.P., count three alleged kidnapping of C.P.,
count four alleged public sexual indecency, counts five and six alleged
sexual abuse of K.P., counts seven through nine alleged sexual assault of
K.P., counts ten and eleven alleged kidnapping of K.P. and B.T.
respectively, count twelve alleged sexual assault of B.T., count thirteen
alleged kidnapping of J.S., and counts fourteen and fifteen alleged sexual
assault of J.S.
2
STATE v. HOFFMAN
Decision of the Court
the four victims — J.S., K.P., B.T., and C.P. — testified Hoffman forced them
into his vehicle and assaulted them sexually.
¶3 J.S. testified that in October 2004, as a fifteen-year-old, she was
walking to her friend’s house when a man she later identified as Hoffman
pulled his truck in front of her and asked her for directions. Hoffman took
her backpack, put it in the truck, and as J.S. was reaching for it, forced her
into the truck. Hoffman drove the truck into a neighborhood, parked in a
driveway, and began asking J.S. to perform sexual acts on him.
¶4 J.S. testified she asked Hoffman to let her go but was in fear
of losing her life and complied with his requests, which included touching
and kissing his penis, performing oral sex on her, and vaginal intercourse.
Hoffman eventually dropped J.S. off at her friend’s house whereupon J.S.
attempted to get Hoffman’s license plate number and called the police. An
investigating police officer checked the license plate number J.S. reported
and found it matched a van registered in Tucson not meeting the
description J.S. gave of the vehicle. A nurse completed a sexual assault kit
which was submitted for DNA testing. The DNA recovered from J.S. was
entered into the Combined DNA Index System (CODIS).
¶5 K.P. testified she was at a bus stop in September 2009 when a
man she later identified as Hoffman stopped the truck he was driving and
told her to get in, and she declined. Two days later, Hoffman again saw her
at a bus stop and told her to get in his truck. When she refused, Hoffman
exited the truck, grabbed the items K.P. was carrying, and threw them in
the truck. K.P. tried to get the items out of the truck when Hoffman got into
the driver’s seat, but he grabbed K.P.’s arm and accelerated the truck which
caused the door to shut while K.P. was attempting to retrieve her things.
¶6 K.P. testified she struggled to “fight him off” but was
unsuccessful. Hoffman touched her breasts and genitals and forced her to
perform oral sex on him. He eventually dropped K.P. off at a Circle K,
where K.P. wrote down his license plate number. She called the police who
matched the license plate number with a truck registered to Hoffman. DNA
recovered from K.P. was entered into CODIS.
¶7 B.T. testified she was walking to her cousin’s house in
December 2010 when a man stopped his vehicle near her and offered her a
ride. The man forced her into the backseat of the car, and, as she struggled
to get out, he hit her in the face with his elbow. After driving for a time, the
man got into the backseat and pulled B.T.’s pants down, digitally
penetrated her vagina, put his mouth on her genitals, and put his penis in
3
STATE v. HOFFMAN
Decision of the Court
her vagina. The man let her out of the truck, and B.T. made her way to her
cousin’s house and called 911. A forensic nurse testified to performing a
sexual assault examination on B.T., and the recovered DNA was again
entered into CODIS.
¶8 C.P. testified she was at a bus stop in September 2011 when a
man who identified himself as Mike and who she later identified as
Hoffman stopped and offered her a ride. She had met Hoffman previously
and thought he lived in the neighborhood so she accepted the ride. Shortly
after C.P. got into Hoffman’s truck, he gave C.P. his phone number. While
in the truck, C.P.’s son called, and she became emotional because she had
not spoken to him for weeks. Hoffman began trying to console her by
putting his arm around her, and C.P. immediately pushed him away and
asked to be let out of the truck. Hoffman did not stop the truck, and C.P.
began struggling with the door to get out but was unable to open it.
¶9 Hoffman forced C.P.’s face into his lap and his exposed penis
touched C.P.’s lips. He drove to the back of a Kmart store and started
grabbing C.P.’s hair and punching her in the back. While C.P. protested,
Hoffman digitally penetrated her vagina and masturbated into a yellow
cloth. He let C.P. go at the Kmart, and she immediately called 911. She
gave the responding police officer Hoffman’s license plate number and his
phone number.
¶10 C.P. was taken to an advocacy center for a sexual assault
examination, and the nurse conducting the examination testified to finding
bruising on C.P.’s back, scratches on her arm, bruising on her labia, a
contusion in the vagina, abrasions on her inner thighs, and two injuries to
the cervix. The police detective who investigated K.P.’s case was also
assigned to C.P.’s case and testified that he recognized Hoffman’s name
when different combinations of the license plate number provided by C.P.
matched with Hoffman’s truck. The detective also matched Hoffman to the
phone number C.P. was given. The detective put together a photo lineup,
and C.P. identified Hoffman as her attacker.
¶11 A DNA sample from Hoffman was entered into CODIS,
which matched with DNA evidence recovered in the cases involving B.T.,
K.P., and J.S. Additionally, individuals from the Department of Public
Safety crime laboratory testified that DNA found on all four women was
separately analyzed and found to match the DNA sample Hoffman
provided.
4
STATE v. HOFFMAN
Decision of the Court
¶12 Hoffman testified that he and his wife had not been intimate
for ten years or more so he sought the services of prostitutes for intimacy.
He claimed the four women were prostitutes, and, although they disagreed
about money, he never sexually assaulted the women.
¶13 The jury acquitted Hoffman of one count of sexual abuse as to
K.P. but found him guilty on all remaining counts. The trial court classified
the offenses as non-dangerous and non-repetitive and sentenced Hoffman
to the presumptive term of imprisonment on all counts. See Ariz. Rev. Stat.
(A.R.S.) § 13-702(A), (D).3 He also ordered the sentences on counts one,
three, and seven through fifteen run consecutively for a total of sixty-nine
years’ imprisonment with credit for 896 days of pre-sentence incarceration.
He timely appealed, and we have jurisdiction pursuant to A.R.S. §§ 12-
120.21(A)(1), 13-4031, and -4033(A)(1).
DISCUSSION
¶14 Within his supplemental brief, Hoffman argues the trial
transcripts inaccurately reflect what occurred during his testimony, and
that an accurate transcript would reveal misconduct by the State. His
argument is unavailing. The trial was transcribed and certified by
authorized court reporters pursuant to Arizona Rule of Criminal Procedure
31.8(b). “A strong implication attaches to . . . transcripts of testimony that
they are accurate and truthful.” State v. Hill, 88 Ariz. 33, 39 (1960). Because
no audio or video of the trial was made part of the record, we must assume
that the transcript accurately reflects what transpired during the trial. Cf.
State v. Hudgens, 102 Ariz. 1, 5 (1967) (assuming proceedings at trial were
accurately reflected within the transcript where basis for alleged error was
not apparent from review of the record).
¶15 Furthermore, even if the transcripts were inaccurate,
Hoffman has not shown how the State’s conduct was improper, or that it
would have impermissibly tainted the proceeding. See State v. Hughes, 193
Ariz. 72, 79 (1998) (“To prevail on a claim of prosecutorial misconduct, a
defendant must demonstrate that the prosecutor’s misconduct ‘so infected
the trial with unfairness as to make the resulting conviction a denial of due
process.’”) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).
¶16 Having reviewed the entire record for reversible error, we
find none. See Leon, 104 Ariz. at 300 (“An exhaustive search of the record
3 Absent material changes from the relevant date, we cite a statute’s
current version.
5
STATE v. HOFFMAN
Decision of the Court
has failed to produce any prejudicial error.”). Hoffman was convicted and
sentenced for committing sexual assault, attempted sexual assault,
kidnapping, public sexual indecency, and sexual abuse. A person commits
sexual assault by “intentionally or knowingly engaging in sexual
intercourse or oral sexual contact with any person without consent of such
person.” A.R.S. § 13-1406(A). A person attempts an offense by “acting with
the kind of culpability otherwise required for commission of an offense
[and] [i]ntentionally do[ing] or omit[ting] to do anything which, under the
circumstances as such person believes them to be, is any step in a course of
conduct planned to culminate in commission of an offense.” A.R.S. § 13-
1001(A)(2). A person commits public sexual indecency by “intentionally or
knowingly engaging in . . . [a]n act of sexual contact, . . . oral sexual contact,
. . . [or] sexual intercourse” while “another person is present, and the
defendant is reckless about whether such other person, as a reasonable
person, would be offended or alarmed by the act.” A.R.S. § 13-1403(A). A
person commits sexual abuse by “intentionally or knowingly engaging in
sexual contact with any person who is fifteen or more years of age without
consent of that person.” A.R.S. § 13-1404(A). Finally, as relevant here, a
person commits kidnapping by “knowingly restraining another person
with the intent to . . . [i]nflict death, physical injury or a sexual offense on
the victim . . . or . . . [p]lace the victim . . . in reasonable apprehension of
imminent physical injury to the victim.” A.R.S. § 13-1304(A)(3)-(4).
Sufficient evidence was presented upon which the jury could determine
beyond a reasonable doubt that Hoffman committed the crimes for which
he was convicted and sentenced.
¶17 All proceedings were conducted in compliance with the
Arizona Rules of Criminal Procedure, and so far as the record reveals,
Hoffman was represented by counsel at all stages of the proceedings and
was present at all critical stages. His presence was properly waived by
counsel when a jury question was presented during deliberations. See State
v. Rose, 231 Ariz. 500, 504, ¶¶ 9-10 (2013) (holding a court may rely on
counsel’s waiver of a defendant’s right to be present absent “exceptional
circumstances that would render ineffective his attorney’s waiver”).
¶18 The jury was properly comprised of twelve jurors, and the
record shows no evidence of jury misconduct. See Ariz. Const. art. 2, § 23;
A.R.S. § 21-102(A); Ariz. R. Crim. P. 18.1(a). At sentencing, Hoffman was
given an opportunity to speak, and the trial court stated on the record the
evidence and materials it considered and the factors it found in imposing
sentence. Additionally, the sentence imposed was within the statutory
limits. See A.R.S. § 13-702(A), (D).
6
STATE v. HOFFMAN
Decision of the Court
CONCLUSION
¶19 Hoffman’s convictions and sentences are affirmed. Defense
counsel’s obligations pertaining to Hoffman’s representation in this appeal
are at an end. Defense counsel need do no more than inform Hoffman of
the outcome of this appeal and his future options, unless, upon review,
counsel finds an issue appropriate for submission to our supreme court by
petition for review. State v. Shattuck, 140 Ariz. 582, 584-85 (1984).
¶20 Hoffman has thirty days from the date of this decision to
proceed, if he wishes, with an in propria persona petition for review. See Ariz.
R. Crim. P. 31.19(a). Upon the Court’s own motion, we also grant Hoffman
thirty days from the date of this decision to file an in propria persona motion
for reconsideration.
:ama
7