State v. Gipson

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ETHAN DANE GIPSON, Appellant.

No. 1 CA-CR 18-0066
FILED 4-28-2020

Appeal from the Superior Court in Maricopa County
No. CR2013-459705-001
The Honorable Warren J. Granville, Judge

AFFIRMED

COUNSEL

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

Janelle A. McEachern Attorney at Law, Chandler
By Janelle A. McEachern
Counsel for Appellant

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge David B. Gass joined.

STATE v. GIPSON
Decision of the Court

C R U Z, Judge:

¶1 Ethan Dane Gipson (“Gipson”) appeals his convictions and
sentences for seven counts of sexual conduct with a minor and one count of
attempt to commit sexual conduct with a minor. After searching the entire
record, Gipson’s defense counsel identified no arguable question of law
that is not frivolous. Therefore, in accordance with Anders v. California, 386
U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), defense counsel asked
this court to search the record for fundamental error. Gipson filed a
supplemental brief in propria persona.1 After reviewing the entire record, we
find no error. Accordingly, we affirm Gipson’s convictions and sentences.

FACTS AND PROCEDURAL HISTORY

¶2 “We view the facts in the light most favorable to sustaining
the convictions with all reasonable inferences resolved against the
defendant.” State v. Harm, 236 Ariz. 402, 404, ¶ 2 n.2 (App. 2015) (quoting
State v. Valencia, 186 Ariz. 493, 495 (App. 1996)).

¶3 Gipson sexually abused his daughter, S.G., from the age of
thirteen until she reported the abuse at age sixteen. At thirteen, S.G. became
pregnant. At fourteen, she gave birth to Baby Boy Doe and gave him up for
adoption (Count 1). Gipson impregnated his daughter a second time but
took her to a clinic to end the pregnancy (Count 2). At least once, the
defendant lubricated his penis with KY Jelly before holding S.G. down
during intercourse (Counts 3 and 4). In another encounter, Gipson used a
vibrator on S.G. before intercourse (Counts 5 and 6). S.G. also recalled an
instance where the defendant requested oral sex from her (Count 7). S.G.
refused, and the defendant had penile/vaginal intercourse with her instead
(Count 8). Gipson sexually abused his daughter for the last time on October
23, 2013, two days before she reported the abuse to police (Count 9).

¶4 Gipson was arrested and charged with seven counts of sexual
conduct with a minor and one count of kidnapping, all Class 2 felonies, as
well as one count of attempt to commit sexual conduct with a minor, a Class
3 felony. Count 1 was further alleged to be a dangerous crime against a

1 We granted Gipson’s first eight continuances to file a supplemental
brief. Per this court’s order, his supplemental brief was due on July 22, 2019.
Gipson filed supplemental briefs on December 16, 2019, and December 26,
2019. Gipson raises over 120 errors and issues on appeal. Due to the
untimely filing, we struck Gipson’s briefs. We nevertheless considered the
issues raised in these briefs.
2

STATE v. GIPSON
Decision of the Court

child. The State alleged several aggravating circumstances, including that
the defendant abused his position of trust over S.G. Gipson pleaded not
guilty to all counts.

¶5 After changing attorneys several times, Gipson requested to
represent himself. The court advised Gipson of his right to counsel, the
responsibilities of self-representation, and the potential consequences if the
alleged charges were proven. The court found that Gipson knowingly,
intelligently, and voluntarily waived his right to counsel.

¶6 At trial, S.G. testified about the years of sexual abuse. She and
Gipson shared a one-bedroom apartment and slept in the same bed. Police
officers searched the apartment and found KY Jelly inside the bedside table
and a vibrator on the floor by the bed. The State’s DNA expert testified that
a paternity test showed Gipson to be the biological father of Baby Boy Doe.
The jury also heard evidence that a partial DNA profile found on S.G.’s
external genitalia matched Gipson’s DNA. A blind expert, Dr. Wendy
Dutton, testified about the different ways children respond to sexual
trauma, including delayed and piecemeal disclosure, and difficulty
remembering specific instances of abuse.2 At the close of the State’s case,
Gipson moved for Arizona Rule of Criminal Procedure 20 judgment of
acquittal. Finding that there was substantial evidence on all counts to be
submitted to the jury, the court denied the motion.

¶7 Gipson testified at trial. He did not dispute the results of the
paternity test. Instead, he claimed S.G. became pregnant not through
intercourse but by masturbating with a rubber glove covered in his sperm.
Gipson called an obstetrician, who testified that Gipson’s theory was
unlikely, but possible. Gipson also admitted to buying the vibrator for
S.G.’s use. Gipson denied any sexual relations with his daughter on the
stand, but the jury heard a one-party consent call between S.G. and Gipson
and a police interview with Gipson. In both, he made no such denials.
Finally, Gipson’s DNA expert agreed with the State’s DNA results: Gipson
is the biological father of Baby Boy Doe and his DNA matched the profile
found on S.G.’s external genitalia.

¶8 After a twenty-six-day trial, the jury convicted Gipson of
seven counts of sexual conduct with a minor and attempt to commit sexual
conduct with a minor, but acquitted Gipson of kidnapping (Count 4).

2 A “cold” or “blind” expert has “not reviewed any case-specific
evidence and [does not] testify about any of the events in the case.” State v.
Haskie, 242 Ariz. 582, 584, ¶ 5 (2017).
3

STATE v. GIPSON
Decision of the Court

Because an element of the offenses was Gipson being in a position of trust
over S.G., the court found that the aggravating factor was proven. For
Count 1, the court sentenced Gipson as a dangerous, non-repetitive
offender to twenty-seven years imprisonment. For Counts 2, 3, 5, 6, 8, and
9, the court sentenced Gipson as a non-dangerous, non-repetitive offender
to five years imprisonment. For Count 7, the court sentenced Gipson to
three-and-one-half years. The sentences for Counts 5 and 6, as well as
Counts 7 and 8, were ordered to run concurrent to each other, and then
consecutive to all other counts. All counts, except Count 7, are flat time.
The court credited Gipson with 1,493 days of presentence incarceration on
Count 1. Gipson timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and
-4033(A)(1).

DISCUSSION

¶9 We review Gipson’s convictions and sentences for
fundamental error. See State v. Flores, 227 Ariz. 509, 512, ¶ 12 (App. 2011).
Gipson’s counsel advised this court that after a diligent search of the entire
record, counsel found no arguable question of law. We have read and
considered counsel’s brief, the issues identified in Gipson’s supplemental
briefs, and fully reviewed the record for reversible error, and find none. See
Leon, 104 Ariz. at 300.

¶10 As a preliminary matter, our review of the record found that
the prosecutor vouched for S.G. in the State’s rebuttal close when the
prosecutor told the jury that S.G. was telling the truth. However, we decline
to order briefing on this issue and affirm Gipson’s convictions. First, the
court instructed the jury that anything said in closing arguments was not
evidence, and we presume that the jurors followed the court’s instructions.
State v. Newell, 212 Ariz. 389, 403, ¶ 68 (2006). Additionally, a prosecutor’s
improper comments do not require reversal of a conviction unless there is
a “’reasonable likelihood’ that the ‘misconduct could have affected the
jury’s verdict.’” Id. at ¶ 67 (citation omitted). When considered in the
context of the twenty-six-day trial, the five days of cross-examination of
S.G., and the overwhelming evidence of guilt, we cannot say that the
prosecutor’s comments affected the jury’s verdict.

¶11 We have also reviewed the issues raised in Gipson’s
supplemental briefs. We decline to address issues made without argument
or raised for the first time on appeal, but nevertheless review for
fundamental error. See State v. Carver, 160 Ariz. 167, 175 (1989). First,
Gipson argues that the jury instructions were in error. Jury instructions are

4

STATE v. GIPSON
Decision of the Court

not required to be “faultless” but must adequately reflect the law. State v.
Rutledge, 197 Ariz. 389, 393, ¶ 15 (App. 2000) (citation omitted). Here, the
court properly instructed the jury on the elements of the charged offenses,
the State’s burden of proof, and Gipson’s presumption of innocence. We
find no error.

¶12 Gipson next argues that the court erred by precluding
statements that S.G. previously said another boy was the father of Baby Boy
Doe. When the defense wishes to present evidence of prior false
accusations, “the court has considerable discretion in determining whether
the probative value of the evidence is substantially outweighed by its
unfairly prejudicial effect.” State v. Gilfillan, 196 Ariz. 396, 405, ¶ 29 (2000)
abrogated on other grounds by State v. Carson, 243 Ariz. 46 (2018); see A.R.S.
§ 13-1421. Here, the court found that the evidence was irrelevant and that
the risk of confusion outweighed any probative value. See Ariz. R. Evid.
403. The court did not abuse its discretion.

¶13 Gipson also argues that the court violated his Sixth
Amendment right to confront a witness when the court ended his cross-
examination of S.G. after five days. The right to cross-examine a witness
“is not without boundary, and trial judges ‘retain wide latitude insofar as
the Confrontation Clause is concerned to impose reasonable limits
on . . . cross-examination based on concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness’ safety, or
interrogation that is repetitive or only marginally relevant.’” State v.
Carreon, 210 Ariz. 54, 63, ¶ 36 (2005) (citations omitted). Here, the court
warned Gipson to ask only relevant questions. The court also found Gipson
was conducting a “microscopic examination” of S.G., stating that the
questioning was redundant and abusive. There is no error.

¶14 Finally, Gipson contends that there was insufficient evidence
to support the verdict. A person is guilty of sexual conduct with a minor, a
Class 2 felony, if he “intentionally or knowingly engag[ed] in sexual
intercourse or oral sexual contact with . . . a minor who is at least fifteen
years of age . . . [and he] is or was in a position of trust.” A.R.S. § 13-1405.
Sexual conduct with a minor who is under fifteen years of age is a
dangerous crime against a child. A.R.S. § 13-705(Q)(1)(e). And a person
commits attempt if he “[i]ntentionally does or omits 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). The record contains sufficient evidence upon which
the jury could determine beyond a reasonable doubt Gipson was guilty of
the charged offenses.

5

STATE v. GIPSON
Decision of the Court

¶15 Further, all of the proceedings were conducted in compliance
with the Arizona Rules of Criminal Procedure. So far as the record reveals,
counsel represented Gipson at all stages of the proceedings, or Gipson
otherwise knowingly waived his right to counsel. See State v. Conner, 163
Ariz. 97, 104 (1990) (right to counsel at critical stages); State v. Rigsby, 160
Ariz. 178, 182 (1989) (right to waive right to counsel). The jury was properly
comprised of twelve jurors, and the record shows no evidence of jury
misconduct. See A.R.S. § 21-102(A). At sentencing, Gipson was given an
opportunity to speak, and the court stated on the record the evidence and
materials it considered, and the factors it found in imposing the sentences.
See Ariz. R. Crim. P. 26.10. Additionally, the sentences imposed were
within the statutory limits. See A.R.S. §§ 13-701 to -709.

¶16 Defense counsel’s obligations pertaining to Gipson’s
representation in this appeal have ended. Defense counsel need do no more
than inform Gipson of the outcome of this appeal and his future options,
unless, upon review, counsel finds an issue appropriate for submission to
the Arizona Supreme Court by petition for review. State v. Shattuck, 140
Ariz. 582, 584-85 (1984). Gipson 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. 31.21. On our own motion, we also grant
Gipson thirty days from the date of this decision to file an in propria persona
motion for reconsideration.

CONCLUSION

¶17 We affirm Gipson’s convictions and sentences.

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

6