State v. Herrera

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

AURELIANO HERNANDEZ HERRERA, Appellant.

No. 1 CA-CR 19-0144
FILED 10-3-2019

Appeal from the Superior Court in Coconino County
No. S0300CR201700847
The Honorable Mark R. Moran, Judge

AFFIRMED

COUNSEL

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

Coconino County Public Defender’s Office, Flagstaff
By Brad Bransky
Counsel for Appellant
 STATE v. HERRERA
Decision of the Court

MEMORANDUM DECISION

Chief Judge Peter B. Swann delivered the decision of the court, in which
Presiding Judge Michael J. Brown and Judge Kenton D. Jones joined.

S W A N N, Chief Judge:

¶1 This is an appeal under Anders v. California, 386 U.S. 738
(1967), and State v. Leon, 104 Ariz. 297 (1969), from Aureliano Hernandez
Herrera’s conviction and sentence for sexual assault. Neither Herrera 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).

¶2 At trial, the state presented evidence of the following facts.
One night in July 2015, roommates J.H. and J.C. went to a bar. J.H. became
extremely inebriated. She and J.C. accepted a ride home from Herrera,
whom they did not know. Unable to find J.C. and J.H.’s residence, Herrera
took J.C. and J.H. to a motel and rented separate rooms for them. Herrera
and J.C. carried J.H. to her room because she was unable to walk. J.C. then
went to his room.

¶3 J.H. woke the next morning covered in vomit, with hazy
memories of what had occurred the night before. A friend took J.H. to the
hospital, where she underwent a sexual assault examination. Herrera’s
DNA was found in J.H.’s vaginal aspirate. When interviewed by law
enforcement, Herrera initially denied that he had sexual intercourse with
J.H., but later claimed that he had consensual intercourse with her.

¶4 The state charged Herrera with one count of sexual assault, a
class 2 felony. A jury convicted Herrera as charged, and the superior court
sentenced him to a mitigated term of 5.25 years in prison with credit for 458
days of presentence incarceration.

¶5 We detect no fundamental error. All of the proceedings were
conducted in compliance with the law. The jury’s verdict was supported
by sufficient evidence. A person commits sexual assault “by intentionally
or knowingly engaging in sexual intercourse . . . with any person without
the consent of such person.” A.R.S. § 13-1406(A). “‘Sexual intercourse’
means penetration into the . . . vulva . . . by any part of the body or by any

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 STATE v. HERRERA
Decision of the Court

object . . . .” A.R.S. § 13-1401(A)(4). Sexual intercourse occurs “without
consent” when “[t]he victim is incapable of consent by reason
of . . . alcohol . . . and such condition is known or should have reasonably
been known to the defendant.” A.R.S. § 13-1401(A)(7). Here, the state’s
evidence was sufficient to show that Herrera had sexual intercourse with
J.H. even though her inebriation rendered her incapable of giving consent.
The court imposed a lawful sentence under A.R.S. § 13-1406(B).

¶6 We affirm the conviction and sentence. Defense counsel’s
obligations in this appeal are at 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 Herrera of the status of this appeal and his future options. Id.
Herrera has 30 days from the date of this decision to file a petition for
review in propria persona. See Ariz. R. Crim. P. (“Rule”) 31.21(b)(2)(A).
Upon the court’s own motion, Herrera has 30 days from the date of this
decision in which to file a motion for reconsideration. See Rule 31.20(c).

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

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