State v. Maloy

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

GARY MALOY, Appellant.

No. 1 CA-CR 16-0802
FILED 2-15-2018

Appeal from the Superior Court in Maricopa County
No. CR2014-002528-001
The Honorable Bradley H. Astrowsky, Judge

AFFIRMED

COUNSEL

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

Maricopa County Office of the Legal Advocate, Phoenix
By Andrew Marcy
Counsel for Appellant
 STATE v. MALOY
Decision of the Court

MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which Presiding
Judge Paul J. McMurdie and Chief Judge Samuel A. Thumma joined.

S W A N N, Judge:

¶1 This is an appeal under Anders v. California, 386 U.S. 738
(1967), and State v. Leon, 104 Ariz. 297 (1969), from Gary Maloy’s convictions
and sentences for molestation of a child, sexual conduct with a minor, and
indecent exposure. Neither Maloy nor his counsel identify any issues for
appeal. We have reviewed the record for fundamental error. See Smith v.
Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. 738; State v. Clark, 196 Ariz.
530, 537, ¶ 30 (App. 1999). We find none.

¶2 In September 2014, a grand jury indicted Maloy for seven
counts of molestation of a child, one count of sexual conduct with a minor,
and one count of indecent exposure, related to three separate victims.
Specifically, the indictment charged Maloy with:

• Count 1: Molestation of a child, for touching the vagina
of Victim A, who was under 15 years of age, between
May 2001 and May 2003;

• Count 2: Indecent exposure, for exposing his genitals
to Victim A, who was under 15 years of age, between
May 2001 and May 2003;

• Count 3: Molestation of a child, for making Victim A,
who was under 15 years of age, touch his penis
between May 2001 and May 2003;

• Count 4: Molestation of a child, for rubbing the vagina
of Victim A, who was under 15 years of age, in the
bathtub between May 2001 and May 2003;

• Count 5: Sexual conduct with a minor, for
“oral/penile” contact related to Victim B, who was
under 15 years of age, between January 1994 and
November 1994;

2
 STATE v. MALOY
Decision of the Court

• Count 6: Molestation of a child, for “digital/penile”
contact related to Victim C, who was under 15 years of
age, between January 1994 and November 1994;

• Count 7: Molestation of a child, for “digital/penile –
pet his snake” contact related to Victim C, who was
under 15 years of age, between January 1994 and
November 1994;

• Count 8: Molestation of a child, for “digital/penile –
slip-n-slide” contact related to Victim C, who was
under 15 years of age, between January 1994 and
November 1994;

• Count 9: Molestation of a child, for “digital/vaginal –
slip-n-slide” contact related to Victim C, who was
under 15 years of age, between January 1994 and
November 1994.

Maloy pled not guilty and the matter proceeded to a jury trial.

¶3 The state presented evidence of the following facts at trial.
Maloy has multiple children, including daughters Victim B, who was born
in 1984; Victim C, who was born in 1987; and Victim A, who was born in or
around 1997. When Victim A was approximately 15 years old, she spent a
weekend with Victim B and the two had a conversation that led to a police
report and an investigation into Maloy’s interactions with the victims
during their childhoods. Victim B and Victim C disclosed certain
information to police in initial interviews, and they later provided
additional details.

¶4 At trial, the victims each stated that when they were young
children, Maloy threatened that “three little piggies” would eat them if they
did not listen to him; Victim B and Victim C further reported that Maloy
would repeatedly enter their bedroom at night wearing a disguise before,
Victim B reported, “grinding on us.” Victim B and Victim C’s half-sister
confirmed that Maloy would enter the bedroom at night in disguise.

¶5 Victim B testified that before she stopped living with Maloy
at around age ten, he forced her to perform oral sex on him on multiple
occasions, including once when she lived with him in Phoenix as a fourth-
grader. Victim C testified to several incidents at the Phoenix home, when
she was a first-grader. Victim C described occasions when Maloy would
order her to take a bath, enter the bathroom, touch her vagina, and make

3
 STATE v. MALOY
Decision of the Court

her touch his penis. Victim C also described an occasion when Maloy asked
her if she wanted to see a one-eyed snake spit and then made her touch his
penis, and an occasion when Maloy touched her vagina and made her touch
his penis on a day he purchased a slip-n-slide. Victim A testified that one
day when she was four or five years old, she greeted Maloy at their home
wearing only underwear and he then touched her vagina, exposed his
penis, and made her touch his penis. A detective confirmed that Maloy
lived in Glendale at the time of that interaction.

¶6 Child Protective Services had investigated Maloy during the
period for which Victim B and Victim C reported sexual abuse. Victim B
testified that she did not disclose the sexual abuse at that time because
Maloy was physically abusive and she was afraid of him. Victim C
similarly testified that she was afraid of Maloy. For her part, Victim A
testified that she did not disclose her abuse until she was approximately 15
years old because she was embarrassed and Maloy was a harsh
disciplinarian. The state presented expert testimony that children subjected
to sexual abuse will often delay disclosing the abuse, especially if the abuser
is a family member, and may disclose in piecemeal fashion.

¶7 At the close of the state’s case-in-chief, Maloy moved for
judgments of acquittal under Ariz. R. Crim. P. 20. The state agreed that a
judgment of acquittal was appropriate on Count 4, and the court dismissed
that count. The court otherwise denied Maloy’s motion. Maloy testified
that he never touched any of the victims in a sexual manner and never had
them touch him in a sexual manner.

¶8 The jury convicted Maloy on all remaining counts, and the
court held that by virtue of the verdicts the jury had necessarily found
“multiple victims” as an aggravating circumstance. The court entered
judgment on the verdicts, found additional aggravating circumstances, and
sentenced Maloy to aggravated prison terms of: (1) 20 calendar years for
Count 1, 1.5 years for Count 2, and 20 calendar years for Count 3, to be
served concurrently, with credit for 1,227 days of presentence incarceration;
(2) 25 calendar years for Count 5, to be served consecutively to the term for
Counts 1 to 3; (3) 20 calendar years for Count 6, to be served consecutively
to the term for Count 5; and (4) 20 calendar years each for Counts 7, 8, and
9, to be served concurrently with each other and consecutively to the term
for Count 6.

¶9 We find no fundamental error. Maloy was present and
represented at all critical stages, the jury was properly comprised and
instructed, and there is no evidence of juror or prosecutor misconduct.

4
 STATE v. MALOY
Decision of the Court

¶10 There were some irregularities at trial with respect to the
state’s first two witnesses: Victim B said, “Don’t you remember that, dad”
and “Remember?” to Maloy during her testimony, and her half-sister called
him a “piece of shit” and told him to “burn” or “rot in hell” as she
descended from the witness stand. But we discern no error in the superior
court’s decision to deny Maloy’s motions for mistrial based on the
witnesses’ exclamations. Mistrial is “the most dramatic remedy for trial
error and should be granted only when it appears that justice will be
thwarted unless the jury is discharged and a new trial granted.” State v.
Dann, 205 Ariz. 557, 570, ¶ 43 (2003) (citation omitted). “And because the
trial judge is in the best position to assess the impact of a witness’s
statements on the jury, we defer to the trial judge’s discretionary
determination” regarding a motion for mistrial. Id. Here, the court
determined that the improper statements were adequately remedied by
instructions directing the jury to disregard the improper statements. We
discern no abuse of discretion in that determination, and we presume that
the jury followed the instructions. See id. at ¶ 46. We further note that the
court took pains to avoid additional witness outbursts — not only did the
court ask the prosecutor to remind future witnesses not to address Maloy,
but the court itself gave the same instruction to Victim C and Victim A
before they testified. The court also warned Maloy, several times, to stop
staring down witnesses.

¶11 The evidence was sufficient to support Maloy’s convictions.
A person commits the class 2 felony of molestation of a child when he
intentionally or knowingly engages in or causes another person to engage
in direct or indirect touching of the genitals by any part of the body, with a
child who is under 15 years of age. A.R.S. §§ 13-1410, -1401(A)(3).1 The
state presented evidence that when Victim C was less than 15 years old,
Maloy touched her vagina and made her touch his penis in the bathtub
(Count 6), made her touch his penis after he referred to it as a snake (Count
7), and touched her vagina and made her touch his penis on the day he
purchased a slip-n-slide (Counts 8 and 9). The state also presented evidence
that when Victim A was less than 15 years old, Maloy touched her vagina
and made her touch his penis (Counts 1 and 3). A person commits the
class 6 felony of indecent exposure when he exposes his genitals in the
presence of a child who is under 15 years of age and is reckless about
whether the child would reasonably be offended or alarmed by the act.
A.R.S. § 13-1402(A), (C). The state presented evidence that Maloy exposed

1 The elements of molestation of a child, and of indecent exposure and
sexual conduct with a minor, are the same now as in the years the offenses
were committed.

5
 STATE v. MALOY
Decision of the Court

his penis to Victim A during the molestation incident (Count 2). A person
commits the class 2 felony of sexual conduct with a minor when he
intentionally or knowingly engages in oral sexual contact, which includes
oral contact with the penis, with a child who is under 15 years of age. A.R.S.
§§ 13-1405, -1401(A)(1). The state presented evidence that when Victim B
was less than 15 years old, Maloy made her perform oral sex on him (Count
5).

¶12 The court properly determined that no trial on aggravators
was necessary because the jury’s verdicts meant that the jury necessarily
found that the state had proved its allegation of “multiple victims” as an
aggravating circumstance under the “catch-all” provision of A.R.S.
§ 13-701. See State v. Glassel, 211 Ariz. 33, 57–58, ¶¶ 103–04 (2005). The court
properly found additional aggravators and imposed lawful sentences
under the applicable versions of A.R.S. § 13-604.01 (the current version of
which is now set forth in § 13-705) and § 13-702. The court properly
credited Maloy for his presentence incarceration under A.R.S. § 13-712. A
pretrial report suggests that the court miscalculated the presentence
incarceration credit by one day. But the possible error was in Maloy’s favor
and the state has not cross-appealed, so we do not disturb the court’s
calculation. State v. Dawson, 164 Ariz. 278, 282–83 (1990).

¶13 We affirm Maloy’s convictions and sentences. Defense
counsel’s obligations pertaining to this appeal have come to an end. See
State v. Shattuck, 140 Ariz. 582, 584–85 (1984). Unless, upon review, counsel
discovers an issue appropriate for petition for review to the Arizona
Supreme Court, counsel must only inform Maloy of the status of this appeal
and his future options. Id. Maloy has 30 days from the date of this decision
to file a petition for review in propria persona. See Ariz. R. Crim. P. 31.19(a).
Upon the court’s own motion, Maloy has 30 days from the date of this
decision in which to file a motion for reconsideration.

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

6