State v. Pennington

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JAMAAL AKEEM PENNINGTON, SR., Appellant.

No. 1 CA-CR 24-0092
FILED 12-17-2024

Appeal from the Superior Court in Maricopa County
No. CR2021-001294-001
The Honorable Scott Minder, Judge

VACATED AND REMANDED IN PART; AFFIRMED IN PART

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Phillip A. Tomas
Counsel for Appellee

The Law Office of Kyle T. Green P.L.L.C., Mesa
By Kyle Green
Counsel for Appellant
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MEMORANDUM DECISION

Judge Andrew M. Jacobs delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Samuel A. Thumma joined.

J A C O B S, Judge:

¶1 Jamaal Pennington appeals his conviction of one count of
sexual conduct with a minor and one count of molestation of a child. The
State concedes it misrepresented evidence in its closing argument in a
manner that directly impacted a key factual dispute, but because there was
sufficient evidence to convict Pennington of sexual conduct with a minor,
we vacate Pennington’s conviction and remand for a new trial on that
charge. There was sufficient evidence to convict Pennington of molestation
of a child, and we affirm that conviction.

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to upholding
Pennington’s convictions. See State v. Morgan, 248 Ariz. 322, 324 ¶ 2 (App.
2020).

¶3 In spring 2018, a missing juvenile called 9-1-1 to turn herself
in. This led to an investigation by the Phoenix Police Department’s Human
Exploitation and Trafficking (“HEAT”) unit, which discovered that another
juvenile might have been missing as well. A description of the second
juvenile was circulated to officers in the area, who located the juvenile the
following day after flagging down a stolen vehicle. Officers identified the
juvenile as I.H. and determined that she was 14 years old.

¶4 Later that month, police interviews of I.H. led to interviews of
Aaleah Barginear, the mother of Pennington’s child. The HEAT unit then
began surveilling Pennington. Police arrested Pennington on April 16,
2018, on charges related to child sex trafficking. Pennington was indicted
on charges of aggravated assault (Counts 2, 4, and 5), child sex trafficking
(Counts 1, 3, and 9), sexual conduct with a minor (Count 6), and molestation
of a child (Counts 7 and 8).

¶5 While in custody awaiting trial, Pennington called his wife on
a recorded line. Pennington told his wife he “put up” I.H. to having sex
with Barginear so he could “get some tax bread out of her.” Pennington

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indicated that he did not know whether I.H. was a minor, but that she could
have been. Pennington admitted that he had sex with Barginear and that
Barginear and I.H. had sex, but insisted he did not have sex with I.H. At
trial, Pennington indicated that he made the phone call “to trick the
police[.]”

¶6 At trial, Barginear testified that, in March 2018, she and
Pennington had “an on-and-off type relationship.” After receiving a tax
refund, Barginear contacted Pennington and met with him at the motel
where he was staying. After buying cocaine from Pennington’s brother,
Barginear and Pennington returned to Pennington’s room. While walking
to the room, Pennington told Barginear that “there was a female in his
room[,]” and that “he wanted [Barginear] to have [sex] with this female.”
When Barginear asked, Pennington told her that the female was 27 years
old. When Barginear and Pennington arrived, I.H. was lying in bed.
Barginear poured herself a drink and asked I.H. how old she was. I.H. said
she was 27. Pennington asked Barginear and I.H. whether they “wanted
to” have sex, and Barginear performed oral sex on I.H. Pennington then
performed oral sex on Barginear. Pennington then wanted to visit a nearby
store. He gave Barginear and I.H. t-shirts to wear as dresses but told them
not to wear underwear. Barginear testified she remembered being at the
store and being at the hotel before and after but did not remember the walk
to and from the store.

¶7 When the group returned to the motel, Pennington and
Barginear had sex. I.H. then got upset and ran into the bathroom crying.
Barginear told Pennington to check on I.H. When Pennington approached
I.H. in the bathroom, I.H. asked him “if he came inside [Barginear] and he
replied yes.” After Pennington and I.H. returned, Barginear suggested
Pennington have sex with I.H. With I.H. on the bed, naked from the waist
down, Pennington “went behind” I.H. with “his pants around his ankles”
and his penis exposed. Barginear testified that once Pennington got behind
I.H., he suddenly “jump[ed] back in a rush to put his pants on.” On cross-
examination, Barginear testified that she “did not see any penetration” and
that Pennington and I.H. did not have sex. Pennington asked Barginear
and I.H. to leave the next morning.

¶8 The State’s closing argument relied heavily on Barginear’s
testimony regarding the interaction between Pennington and I.H. in the
bathroom, mischaracterizing it as an admission that Pennington ejaculated
in I.H., meaning he had sex with I.H.:

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[I.H.] got up and ran to the bathroom crying and [I.H.] asked,
[d]id you come in me, and the Defendant said yes. And that’s
the important part right there. The Defendant said yes. And
so while [Barginear] may not have been able to exactly see
whether the Defendant put his penis inside of [I.H.’s] vagina,
there are circumstances in which you can make a reasonable
inference of what happened there based on what [Barginear]
observed and what she heard happen afterwards.

In summarizing the events, the State also said the interaction in the
bathroom happened after Pennington was behind I.H. with his pants down.

¶9 When I.H. did not appear to testify at trial, the court granted
the State’s motion to dismiss Counts 1-5. The court later granted
Pennington’s motion for a judgment of acquittal on Counts 8 and 9, to
which the State stipulated. The court denied Pennington’s motion for a
judgment of acquittal on Counts 6 (sexual conduct with a minor) and 7
(molestation of a child). The jury convicted Pennington of those two counts.
The court later sentenced Pennington to 13 years in prison for Count 6 and
to a consecutive 17-year prison term for Count 7.

¶10 Pennington timely appealed his convictions and sentences.
He argues that the State’s characterization of Barginear’s testimony in
closing argument was prosecutorial misconduct and that there was
insufficient evidence to convict him of molestation of a child and sexual
conduct with a minor.

DISCUSSION

I. The State Concedes Its Closing Argument Misstated the Evidence,
Creating a Reasonable Chance the Error Affected the Jury’s
Verdict on One Count, Requiring a New Trial on that Count.

A. The State’s Closing Argument Misstated the Evidence in a
Way That Created Fundamental, Prejudicial Error.

¶11 Pennington argues the State’s closing argument
misrepresented Barginear’s testimony by incorrectly suggesting she stated
that Pennington ejaculated in I.H., when she testified instead that
Pennington ejaculated in Barginear. Pennington is correct on this point.
The State likewise agrees and argues Pennington should receive a new trial
on the charge of sexual conduct with a minor.

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¶12 Yet because Pennington did not object to the State’s closing
argument, we must determine if the error to which the State confesses is
both fundamental and prejudicial. See State v. Escalante, 245 Ariz. 135, 140
¶ 12 (2018). “Error is fundamental if it goes to the foundation of a case,
takes away an essential right, or is so egregious that a defendant could not
have received a fair trial.” State v. Murray, 250 Ariz. 543, 548 ¶ 14 (2021).

¶13 We agree with the parties that the error was fundamental
because, as the State concedes, it “directly impacted a key factual dispute—
i.e.[,] whether Pennington penetrated [I.H.]” We likewise agree with the
State that the misstatement of the record was “emphasized and highlighted
to the jury as an important piece of evidence for [it] to consider.” The
record, therefore, shows that the fundamental error resulted in prejudice.
See Escalante, 245 Ariz. at 144 ¶ 29 (error is prejudicial if it “deprived [the
defendant] of the opportunity for the jury to render a verdict” untainted by
the asserted misconduct); see also State v. Dansdill, 246 Ariz. 593, 608 ¶ 60
(App. 2019) (improper arguments made repeatedly were prejudicial); cf.
State v. Sharp, 193 Ariz. 414, 422 ¶ 23 (1999) (no prejudice when prosecution
did not emphasize improper evidence at trial). We thus vacate
Pennington’s conviction for sexual conduct with a minor.

B. Pennington May Be Retried for Sexual Conduct With a
Minor Because There Was Sufficient Evidence to Convict
Him of That Offense.

¶14 While we agree that the State’s comments in closing argument
warrant a new trial on the sexual conduct with a minor charge, we must
still address Pennington’s argument that there was insufficient evidence to
support the conviction. See State v. Roberts, 126 Ariz. 92, 95 (1980)
(recognizing that while the court reversed conviction because of error to
exclude witness, it must address insufficient evidence argument because of
double jeopardy considerations); State v. Ortiz, 120 Ariz. 384, 386 (1978)
(holding that a defendant cannot be re-tried when conviction is reversed on
appeal based on insufficient evidence). Because there was sufficient
evidence to convict Pennington of this charge, a second trial does not offend
constitutional protections against double jeopardy.

¶15 We review insufficient evidence claims like Pennington’s de
novo and “must decide whether any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Dansdill,
246 Ariz. at 600 ¶ 19 (cleaned up). The credibility of witnesses is a matter
for the trier of fact, and not this court. See State v. Lee, 151 Ariz. 428, 429
(App. 1986). Thus, “[w]e . . . ‘may not re-weigh the facts or disregard

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inferences that might reasonably be drawn from the evidence,’ and we may
not find the evidence insufficient ‘when reasonable minds may differ.’”
Dansdill, 246 Ariz. at 600 ¶ 19 (quoting State v. West, 226 Ariz. 559, 563 ¶ 18
(2011)).

¶16 “A person commits sexual conduct with a minor by
intentionally or knowingly engaging in sexual intercourse or oral sexual
contact with any person who is under eighteen years of age.” A.R.S. § 13-
1405(A). Sexual intercourse is “penetration into the penis, vulva or anus by
any part of the body or by any object or masturbatory contact with the penis
or vulva.” A.R.S. § 13-1401(A)(4).

¶17 Pennington argues there was insufficient evidence to convict
him of sexual conduct with a minor because “the State did not present any
evidence that the [Pennington] had sexual intercourse with I.H.” and the
only “witness gave testimony that was exculpatory to [Pennington].” He
also emphasizes the State’s mischaracterization of this testimony during
closing arguments. The State counters that “there was sufficient evidence
to allow the jury to infer that when Pennington went behind I.H., he
engaged in sexual conduct with her because both of their genitals were
exposed and Pennington had his hands around [I.H.]’s waist” while she
was naked from the waist down on the bed “on her hands and knees[.]”
The State emphasizes that “the jury is not expected to leave their common
sense and previous life experiences at the court house steps.”

¶18 Pennington has failed to show that no rational trier of fact
could find the evidence sufficient to find him guilty beyond a reasonable
doubt. See State v. Greene, 192 Ariz. 431, 436 ¶ 12 (1998). Three officers
testified that based on I.H.’s date of birth, she was 14 years old when she
was picked up in April 2018, showing she was under the age of 18 at the
time of the charged offenses. Given Barginear’s testimony about how I.H.
and Pennington were positioned, a reasonable jury could conclude that
some penetration occurred. See State v. Pollock, 57 Ariz. 415, 418 (1941);
Dansdill, 246 Ariz. at 600 ¶ 19. While Barginear did testify that she did not
see penetration and that I.H. and Pennington did not “have sex[,]” it is for
the jury to assess a witness’s credibility and decide what testimony to accept
and what to reject. See Lee, 151 Ariz. at 429. Barginear admitted she was
under the influence of drugs and alcohol and that her memory of the
evening was impaired, allowing a reasonable jury to accept some portions
of her testimony and reject others. Considering this evidence, Pennington
has not shown that there is no hypothesis on which Pennington could have
been convicted. See State v. Maldonado, 206 Ariz. 339, 343 ¶ 17 (App. 2003).

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Thus, there was sufficient evidence to convict Pennington of sexual conduct
with a minor.

II. There Was Sufficient Evidence to Convict Pennington of
Molestation of a Child.

¶19 Pennington argues there was insufficient evidence to convict
him of molestation of a child because Barginear’s testimony showed he
directed her to have sex with I.H., but not that he actually caused her to do
so. See Dansdill, 246 Ariz. at 600 ¶ 19 (requiring court to “decide whether
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt[]”) (cleaned up). He emphasizes Barginear’s
testimony that he asked Barginear and I.H. if they wanted to have sex and
that Barginear “just did it.”

¶20 Relevant here, “[a] person commits molestation of a child by
intentionally or knowingly engaging in or causing a person to engage in
sexual contact, except sexual contact with the female breast, with a child
who is under fifteen years of age.” A.R.S. § 13-1410(A) (emphasis added).
Sexual contact includes “any direct or indirect touching, fondling or
manipulating of any part of the genitals . . . by any part of the body . . . or
causing a person to engage in such contact.” A.R.S. § 13-1401(A)(3)(a). As
applicable here, “[c]onduct is the cause of a result when . . . [b]ut for the
conduct the result in question would not have occurred[,]” and the
relationship between the conduct and results satisfies any other statutory
requirements. A.R.S. § 13-203(A).

¶21 Barginear testified Pennington never forced or caused her to
do anything she did not want to do. But whether Barginear wanted to
participate is irrelevant to whether the jury properly could find Pennington
caused Barginear to engage in sexual contact with I.H. See State v. Hummer, 184 Ariz. 603, 606 (App. 1995) (holding that the state of mind of the person
caused to make sexual contact “is not at issue” and finding that defendant
knowingly caused sexual contact by instructing victim to rub defendant’s
legs and touch under defendant’s shorts); State v. Brock, 248 Ariz. 583, 587 ¶
4, 592 ¶ 24 (App. 2020) (finding evidence sufficient to convict defendant of
child molestation where defendant and victim had online relationship in
which defendant “encouraged” victim to engage in online sexual activity
even though victim initially willingly participated in that activity).

¶22 There was sufficient evidence from which a reasonable jury
could find that but for Pennington’s introduction of, and direction to
Barginear, she would not have had sexual contact with I.H. See A.R.S. § 13-

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203(A)(1) (requiring showing that “[b]ut for the conduct the result in
question would not have occurred[]”). Barginear testified Pennington told
her “he wanted [her] to have [sex] with [I.H.]” and then brought Barginear
to the motel room where I.H. was lying in bed and asked the women if they
wanted to have sex. Pennington likewise later told his wife he “put [I.H.]
up to” having sex with Barginear so he could “get some tax bread out of
her.” And as noted above, officer testimony sufficiently established that
I.H. was under the age of fifteen. Thus, there was sufficient evidence to
convict Pennington of child molestation.

CONCLUSION

¶23 For these reasons, we reverse Pennington’s conviction of
sexual conduct with a minor and order a new trial, but we affirm his
conviction of molestation of a child.

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

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